David Michael Bryant v. State ( 2019 )

Opinion issued August 13, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00684-CR
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DAVID MICHAEL BRYANT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 16CR2992
MEMORANDUM OPINION
David Michael Bryant was indicted for the felony offense of evading arrest in
a motor vehicle. A Galveston County jury found Bryant guilty of the offense, and
the trial court sentenced him to five years in prison and suspended imposition of the
sentence, assessed three years of community supervision and assessed a $1,000 fine.
In a single issue, Bryant contends on appeal that the trial court’s failure to
instruct the jury on the defense of involuntary intoxication constituted error that
caused him egregious harm. We hold that Bryant failed to preserve this issue for
review and therefore affirm.
Background
In the early morning hours of November 5, 2016, a patrol officer with the
Kemah Police Department was dispatched to a bar to address a disturbance that
started after the bartender refused to serve an individual. Before the officer arrived,
the individual left the bar in a black pickup truck. The officer encountered a truck
that matched the description and confirmed that the license plate number matched
the one given when the disturbance was reported.
After the officer turned on his emergency lights, and the pickup stopped, but
the pickup accelerated rapidly. The officer pursued the pickup, which was driving at
speeds in excess of 100 miles per hour, failing to stay within one lane, and nearly
striking several vehicles. Eventually, several officers joined the pursuit and used
their patrol cars to surround the pickup. Bryant, the truck’s driver, was arrested.
Bryant testified that a medical issue he has had since 2014 causes chronic
pain, for which doctors prescribed acetaminophen with codeine and diazepam. The
day and evening of the incident, Bryant took those medications about every four
hours. According to his testimony, Bryant blacked out shortly after taking a third
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dose of each medication at about 5:00 P.M. and does not remember anything that
happened after that until he awoke in jail the following morning.
Bryant did not request, and the trial court did not submit, a jury instruction on
the defense of involuntary intoxication.
DISCUSSION
Bryant contends that the trial court erred by not including an involuntary-
intoxication instruction sua sponte in the charge because it prevented the jury from
considering whether he lacked the intent to intentionally evade arrest. The State
responds that Bryant was required to make his own request for the defensive
instruction or object to its omission and, because he did not, he waived this
contention for appeal.
The jury charge must include an instruction on any defensive theory raised by
the evidence and timely requested by the defendant. Booth v. State, 679 S.W.2d 498,
500 (Tex. Crim. App. 1984). On request, a defendant is entitled to a defensive
instruction regardless of whether the evidence is strong or weak, unimpeached or
contradicted and regardless of the trial court’s opinion about the its credibility. See
Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003); Arnold v. State, 742
S.W.2d 10, 13 (Tex. Crim. App. 1987).
Generally, the trial court has the duty to deliver to the jury “a written charge
distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art.
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36.14. The trial court, however, has no duty to instruct the jury sua sponte on
unrequested defensive issues because they are not “the law applicable to the case.”
Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see also Delgado v.
State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007) (explaining that rule that
trial courts are not obliged to sua sponte submit defensive issues stems in part from
rationale that decision to request defensive issue is matter of trial strategy). As a
result, a defendant who fails to preserve his request for a defensive instruction cannot
complain about its omission on appeal; he has procedurally defaulted his complaint.
See Vega, 394 S.W.3d at 519.
Bryant concedes that he did not request a jury instruction on involuntary
intoxication or otherwise object to the charge as submitted. We therefore hold that
he waived appellate review of this issue. See TEX. R. APP. P. 33.1(a).
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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