Brown v. State

DAUPHINOT, J.

filed a concurring and dissenting opinion.

I agree that involuntary intoxication is not a defense to driving while intoxicated (DWI) under the facts of this case. But to hold that it can never be a defense to DWI goes too far. I cannot join the majority in that sweeping statement; I therefore must respectfully dissent.

Courts have long struggled with the conflict between the due process requirement of criminalizing only conduct that involves both a culpable mental state and a criminal act (mens rea and actus reus) and the apparent intent of the legislature to dispense with the requirement of a culpable mental state in criminalizing intoxication offenses involving the operation of a vehicle while intoxicated. In the past, we resolved the conflict by concluding that when a person voluntarily ingests an intoxicant and then voluntarily operates a vehicle, the requisite culpable mental state is implied or imputed. 3 Courts eventually concluded that the legislature intended to dispense ■with the requirement of a culpable mental state in the offense of DWI. 4 The legislature also passed section 49.11 of the penal code to relieve both the bench and bar of any confusion regarding the necessity of proving a culpable mental state in DWI prosecution. 5

Traditionally, the defense of involuntary intoxication applies to an affirmative defense of insanity (due to involuntary intoxi *252 cation). 6 In that sense, the defense of involuntary intoxication would be irrelevant in a DWI case because it would go to the inability to perceive the wrongfulness of the defendant’s acts. That is, it would defeat the culpable mental state, and because DWI requires no culpable mental state, the defense would not be relevant. 7

The lines between mens rea and actus reus have been blurred in the DWI context. Defendants, including Appellant, have argued that they are entitled to a jury instruction on the issue of involuntary intoxication. Courts have responded, as has the majority here, that involuntary intoxication is not a defense to a DWI offense. 8 That response is not completely accurate.

It is true that a defendant is not entitled to an instruction that involuntary intoxication is a defense to DWI, and that is so for two reasons. First, “defense” is a term of art and exists only if enumerated in the penal code. 9 Involuntary intoxication is not enumerated as a defense in the penal code. 10 Second, as mentioned above, involuntary intoxication is an affirmative insanity defense, 11 and therefore has no application to DWI, which does not require a culpable mental state.

DWI does require a voluntary act, however. 12 Section 6.01(a) of the penal code provides, “A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.” 13 An essential element of the offense of DWI is that the defendant operated a motor vehicle in a public place while intoxicated. 14

Case law has attempted to reconcile the apparent conflict between the requirement of voluntariness and the absence of a culpable mental state for DWI. Some courts have concluded that automatism, not involuntary intoxication, is the proper defense to raise when the voluntariness of a DWI defendant’s acts is at issue. 15 The Austin Court of Appeals explained,

[Ajppellant ... claims that his defense was automatism, a defense of an individual not engaging in a voluntary act. Appellant points out that automatism as a defense involves, inter alia, being unconscious or semiconscious at the time of the acts constituting the offenses. Appellant argues that persons in such condition do not engage in a voluntary act.

“ ‘Automatism is defined as (1) action or conduct occurring without will, pur *253 pose, or reasoned intention such as sleep walking, behavior carried out in a state of unconsciousness or mental dissociation without full awareness ..., (2) The state of a person who, though capable of action is not conscious of his or her actions.’ ”

“Voluntariness” within the meaning of section 6.01(a) refers only to one’s own physical body movements. Although “automatism” was not mentioned, the Texas Court of Criminal Appeals has stated in connection with the meaning of “voluntariness”:

“If these physical movements are the nonvolitional result of someone’s act, are set in motion by some independent nonhuman force, are caused by a physical reflex or convulsion, or are the product of unconscious, hypnosis or other non-volitional impetus, that movement is not voluntary.”

The difficulty with appellant’s argument is that he does not, even now, sufficiently point out what evidence supports his claim to the defense of automatism — that of being unconscious or semiconscious at the time in question. The fact that appellant testified that he could not recall what had happened when he awakened in jail later that morning does not support his claim of automatism. “[I]t is not enough [to raise the defense of automatism] that the defendant suffers from amnesia and thus cannot remember the events in question.” The evidence demonstrates that appellant’s acts were voluntary. Appellant admitted that his consumption of beer on the date in question was voluntary. His claim that he might have been drugged by Tom Tutor is not supported by the evidence and is mere speculation. There was no evidence to show that appellant was unconscious or semiconscious at the time of the commission of the offenses charged.

Moreover, an instruction on voluntariness under section 6.01(a) is necessary only if the accused admits committing the act or acts charged and seeks to absolve himself of criminal responsibility for engaging in the conduct. “When a person claims the involuntary act defense he is conceding that his own body made the motion but denies responsibility for it.” Here, appellant did not admit committing the offenses charged. 16

I also point out that another problem with determining whether a defendant has committed a voluntary act in the DWI context is the very broad definition of the term “operate”:

There is no statutory definition of the term “operate.” However, the Court of Criminal Appeals has held that, to find operation of a motor vehicle, “the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.” In reaching its holding, the court repeated the reasoning enunciated in Bastion:

We do not accept the contention that to operate a vehicle within the meaning of the statute, the driver’s personal effort must cause the automobile to either move or not move. Purposely causing or restraining actual movement is not the only definition of “operating” a motor vehicle. In other words, we examine the totality of the circumstances to determine if [the defendant] exerted personal effort upon his vehicle for its intended purpose. 17

*254 In sum, I agree that a DWI defendant is not entitled to a jury instruction on involuntary intoxication, because the jury instruction is an instruction on the affirmative defense of insanity that goes only to a culpable mental state. I therefore agree with the outcome reached by the majority. But because the majority’s overbroad holding that a DWI defendant may never raise the defense of involuntary intoxication conflicts with the requirements that a person must voluntarily act — that is, voluntarily operate a vehicle and voluntarily partake of intoxicants — to commit DWI, I must also respectfully dissent.

. Cockrell v. State, 135 Tex.Crim. 218 , 117 S.W.2d 1105, 1109-10 (Tex.Crim.App.1938).

. See Lomax v. State, 233 S.W.3d 302, 311 (Tex.Crim.App.2007).

. See Tex. Penal Code Ann. § 49.11 (a) (Vernon 2003) (providing that proof of mental state is not required for conviction of Chapter 49 offenses).

. Mendenhall v. State, 77 S.W.3d 815, 817-18 (Tex.Crim.App.2002); Torres v. State, 585 S.W.2d 746, 748-50 (Tex.Crim.App.1979).

. Nelson v. State, 149 S.W.3d 206, 210 (Tex.App.-Fort Worth 2004, no pet.).

. See, e.g., Otto v. State, 141 S.W.3d 238, 241 (Tex.App.-San Antonio 2004), rev’d on other grounds, 173 S.W.3d 70 (Tex.Crim.App.2005).

. Tex. Penal Code Ann. § 2.03 (a) (Vernon 2003).

. See generally id. §§ 8.01-.07.

. Mendenhall, 77 S.W.3d at 817-18 ; Tones, 585 S.W.2d at 748-50 ; see Tex. Penal Code Ann. § 8.04 .

. Tex. Penal Code Ann. § 6.01 (a) (Vernon 2003).

. Id.

. Id. §§ 6.01(a), 49.04; see also Ex parte Ross, 522 S.W.2d 214, 218 (Tex.Crim.App.) (“[lit is apparent that the Legislature never intended to require proof of the culpable mental state of a person charged with an offense where one of the essential elements is voluntary intoxication.”) (emphasis added), cert. denied, 423 U.S. 1018 , 96 S.Ct. 454 , 46 L.Ed.2d 390 (1975), abrogated on other grounds by Ex parte McCain, 67 S.W.3d 204, 207, 209 (Tex.Crim.App.2002).

. See, e.g. Peavey v. State, 248 S.W.3d 455 (Tex.App.-Austin 2008, pet. ref'd).

. Id. at 464-66 (citations omitted).

. Hearne v. State, 80 S.W.3d 677, 679 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (citations omitted).