Document Info

DocketNumber: 02-18-00508-CR

Filed Date: 8/28/2019

Status: Precedential

Modified Date: 8/31/2019

  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-18-00508-CR
    ___________________________
    ERIC RICHARDSON, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from the 297th District Court
    Tarrant County, Texas
    Trial Court No. 1536852D
    Before Gabriel, Kerr, and Birdwell, JJ.
    Memorandum Opinion by Justice Birdwell
    MEMORANDUM OPINION
    Appellant Eric Richardson appeals from his conviction for driving while
    intoxicated. In two points, he challenges a fee assessed against him as a court cost
    and the trial court’s denial of his requested jury question on involuntary intoxication.
    We affirm the judgment as modified.
    I.     Background
    Appellant has a history of suffering seizures. On March 10th, 2018, he was
    admitted to Medical City Arlington (MCA) after suffering several seizure episodes. At
    the hospital, he was administered anti-seizure medication.             After each seizure,
    appellant became temporarily confused. Appellant’s wife testified that when he has a
    seizure, “he wakes up dazed and confused, very sweaty, glassy eyed. He doesn’t
    remember anything.” While he was at MCA, “[t]here were points that he didn’t
    remember why he was in the hospital” and “was in and out of understanding why he
    was there.” The doctor who treated appellant in MCA’s emergency room explained
    that, after the type of seizures appellant experienced, patients “usually have something
    called postictal confusion. It is a confusion status. It is a very debilitating status. . . .
    They’re just very, very confused. This lasts for a few minutes to up to two days.”
    The doctor stated that appellant had a seizure in the emergency room and as a result
    was in postictal status for about fifteen minutes but then returned to his normal
    baseline status.
    2
    MCA doctors originally planned to discharge appellant on March 11, but
    because of concerns about medication side effects—appellant became lightheaded
    when standing—the treating neurologist recommended that he stay another day.
    Around 9:00 p.m. on March 11, appellant’s wife took a shower, planning to sleep on a
    sofa in appellant’s hospital room. When she went into the room after her shower,
    appellant was no longer there.
    After midnight, Sharilys Velez and her family woke to the sound of appellant
    banging on the front door of their house in Arlington and demanding to be let in.
    The family did not know appellant or why he was trying to enter their home. Velez
    called 9-1-1.
    When police responded, they found appellant in his car slowly reversing his car
    from where he had parked it on the street in front of Velez’s house. They stopped
    appellant and discovered that he had a gash on the top of his head and that he had an
    IV in his arm. An ambulance was called, and once it arrived, officers spoke with
    appellant. He admitted that he had been drinking. Officers found open containers of
    beer in his car—two 25-ounce cans of Bud Ice beer, one empty and one partially
    empty—as well as a receipt for the beer’s purchase at around 10:30 p.m. earlier that
    evening. Based on their investigation and appellant’s performance on the horizontal
    gaze nystagmus test, the officers decided to arrest appellant for driving while
    intoxicated.
    3
    The ambulance took appellant back to MCA. There, he declined to give the
    officers permission for a blood draw, so the officers applied for and received a blood
    draw warrant.       Subsequent analysis of his blood showed a blood alcohol
    concentration of 0.178 (plus or minus .017).
    At trial, the MCA emergency room doctor who had treated appellant testified
    that Keppra, the medication administered to appellant for his seizures, can cause
    drowsiness or sleepiness, as well as loss of coordination, as a side effect. He further
    stated that taking Keppra with alcohol can increase the side effect of Keppra, and
    Keppra can increase alcohol’s effect. However, he further testified that Keppra is not
    an intoxicant.
    Appellant’s attorney requested a jury question on involuntary intoxication
    based on “the seizures, the Keppra, and the [hospital] treatment”:
    [Appellant’s attorney]: Judge, and one more thing. I just—I might
    request an involuntary intoxication instruction.
    ....
    THE COURT: You mean—well, just tell me what you—in
    general, what you want it to say.
    [Appellant’s attorney]: Well, I mean, basically it would follow the
    language—the voluntariness language in the code that, you know—I
    think I addressed it in voir dire, and if they believe that, you know—that
    this offense was not committed voluntarily, you know, then—to that
    effect.
    THE COURT: Well, okay. But you’re gonna have to—what
    contributed or what evidence in the record is there that he was
    intoxicated involuntarily?
    4
    [Appellant’s attorney]: I think everything in conjunction with
    regards to the seizures, the Keppra, and the treatment at the hospital
    just prior to—and we’re talking hours prior to an encounter with law
    enforcement at a house.
    THE COURT: Well, I would agree if—if your expert had said
    you can become intoxicated or his actions were the result of involuntary
    intoxication because of the medication, because the hospital
    administered the medication and that was probab—arguably involuntary,
    although, I guess he had to consent to that. But there’s nothing in the
    record that says that it—it was solely the result of the Keppra. And
    if you’re gonna say, Well, it’s a combination, then—then the purchase of
    the Bud Ice and drinking the Bud Ice, there’s nothing to say that that
    was involuntary. There’s nothing in the record that speaks to that.
    [Appellant’s attorney]: Yes, Judge.
    THE COURT: I just—I’ll think about it. If you want to have a
    proposed charge that you want to put in the record, that’s—I’ll think
    about it, but
    I—
    [Prosecutor]: Judge, that’s like saying that someone else gave him
    all the alco—I mean, someone else dosed him and he didn’t give it to
    himself.
    THE COURT: Well, you’re not gonna get it—
    [Prosecutor]: There’s no evidence of that.
    THE COURT: You’re just—you’re not gonna get it based upon
    the totality and the—and the combination of—of drugs and alcohol
    because the alcohol was a voluntary act. There’s nothing to say that the
    consuming of alcohol was involuntary.
    [Appellant’s attorney]: And—
    THE COURT: So then—so then you’re left with, Okay, well, was
    it just the Keppra? And because he’s having seizures, that’s not
    intoxication. So then you have—then you have to rely on the Keppra
    5
    and there’s just nothing in the—in the—in the record to say that it was
    just the Keppra and that was involuntary.
    [Prosecutor]: And Keppra is not an intoxicating substance. I
    mean, there was testimony about that.
    [Appellant’s attorney]: I’m not claiming that it is.
    THE COURT: Hence my point about nothing in the record
    stating that. So, you know, if Dr. What’s-His-Name would have said
    that, then you might be there, but I just—I just can’t—I just can’t get
    there. I—I just can’t see that—that anything contributing to his
    intoxication, if any, would have been involuntary other than the
    administering of the medication which is combined with the
    alcohol was—had to have been—alcohol would have had to have
    been a voluntary act, so I just—I just can’t go there with you, Counsel.
    Novel theory, though.
    [Prosecutor]: Can the State just put something on the record too
    real quick? The medical records—
    THE COURT: If you must.
    [Prosecutor]: The medical records make it clear that this
    defendant consented and anything that’s given to him in the hospital is,
    therefore, voluntary. He’s not being held there against his own free will
    and dosed with medicines that he has not consented to the
    administration of.
    THE COURT: Yeah, I kind of said that. Thank you for adding to
    it though.
    [Prosecutor]: You’re welcome.
    THE COURT: All right. Anything else?
    [Appellant’s attorney]: Nothing further, Judge.
    [Emphasis added.]
    6
    At the trial conference, appellant’s attorney read a proposed involuntary
    intoxication question into the record. The trial court denied the requested instruction.
    The jury found appellant guilty and assessed punishment at four years’ confinement
    and a $1,000 fine. The trial court sentenced appellant accordingly.
    II.   Emergency Medical Services Fee
    In appellant’s first point, he challenges the “Emergency Medical Services” fee
    assessed against him as a court cost. He argues that article 102.0185(a) of the Texas
    Code of Criminal Procedure, the statutory provision on which the fee was based, is
    facially unconstitutional. See Tex. Code Crim Proc. Ann. art. 102.0185(a). Based on
    this court’s opinion in Casas v. State, 
    524 S.W.3d 921
    , 927 (Tex. App.—Fort Worth
    2017, no pet.), the State concedes the point. Accordingly, we modify the judgment to
    omit the challenged fee.1
    III.   Jury Charge
    In appellant’s second point, he argues that the trial court erred by denying his
    requested jury charge on involuntary intoxication.
    Although appellant’s attorney mentioned appellant’s seizures in initially arguing
    for the instruction, from trial court’s statements in response, the trial court clearly
    focused the discussion on whether there was any evidence that appellant’s medication,
    1
    The legislature amended this article after this court’s Casas opinion, but the
    changes do not apply to a conviction for an offense committed before the effective
    date of the amendment. We make no comment on the effect of that amendment.
    7
    either alone or in combination with alcohol, was an intoxicant, and appellant’s
    attorney did not argue that evidence of appellant’s seizures could support submitting
    an involuntary intoxication question.      Appellant’s requested instruction further
    clarified the parameters of the request:
    Section 6.02(a) of the Texas Penal Code states a person commits
    an offense only if he voluntarily engages in conduct including an act an
    omission or possession[.]
    ....
    A defense asserted in this case is that the defendant was
    involuntary[ily] intoxicated to the point that he could not form the intent
    to voluntarily engage in criminal conduct under Section 6.02(a).
    As a result of taking a substance as prescribed, the defendant
    was so intoxicated that he could not form the intent to voluntarily
    engage in conduct at the time of the offense.
    In determining the issue of involuntary intoxication, you may
    consider the testimony of expert and nonexpert witnesses. The use of
    medications[,] . . . consumption of intoxicating liquor, drug, or other
    substance that merely arouses passion, diminishes perceptions, releases
    inhibition, or clouds reason and judgment does not excuse the
    commission of a crime; therefore, if you find that the defendant was
    involuntarily intoxicated to the extent of being incapable of forming the
    necessary voluntary[] intent to engage in the conduct, or if you have a
    reasonable doubt thereof, you should find the defendant not guilty.
    [Emphasis added.]
    Appellant did not request an instruction that because of the effects of his
    seizures, he committed a nonvolitional act. He requested an instruction that because
    of the medication prescribed and administered to him to treat his condition, he did
    not have the normal use of his mental or physical faculties such that he could not
    8
    form the intent to voluntarily engage in conduct at the time of the offense. See Tex.
    Penal Code Ann. § 49.01(2) (defining “intoxicated”). While some testimony at trial
    indicated that his medication could make a patient drowsy or uncoordinated, no
    evidence supported a finding based on the instruction appellant requested. Instead,
    the only evidence at trial was that Keppra is not an intoxicant. Accordingly, regardless
    of whether involuntary intoxication is a defense to DWI offenses in Texas, see Farmer
    v. State, 
    411 S.W.3d 901
    , 908 (Tex. Crim. App. 2013) (Cochran, J., concurring) (stating
    that Texas law recognizes an affirmative defense of involuntary intoxication when the
    accused has no independent judgment or volition in taking the intoxicant and, as a
    result of his intoxication, did not know that his conduct was wrong), appellant was
    not entitled to his requested involuntary intoxication instruction. See 
    id. at 906
    (stating
    that a defendant is entitled to a jury instruction on a defensive issue raised by the
    evidence).
    IV.    Conclusion
    We modify the trial court’s judgment to omit the Emergency Medical Services
    fee, and we affirm the judgment as modified.
    9
    /s/ Wade Birdwell
    Wade Birdwell
    Justice
    Do Not Publish
    Tex. R. App. P. 47.2(b)
    Delivered: August 28, 2019
    10