Summary
emphasizing that involuntary intoxication is not defense to DWI and that correct defense is involuntary act
Summary of this case from Walker v. StateOpinion
No. 05-02-01730-CR
Opinion Filed July 9, 2003 Do Not Publish
On Appeal from the County Criminal Court No. 6, Dallas County, Texas, Trial Court Cause No. MB01-43567-G. AFFIRM
Before Justices WRIGHT, MOSELEY, and FRANCIS.
MEMORANDUM OPINION
Andrea Lynn Stamper appeals her conviction for driving while intoxicated (DWI). After the jury found appellant guilty, the trial court assessed punishment at 120 days' confinement, probated for twenty-four months, and a $600 fine. In two issues, appellant contends the trial court erred (1) by denying her request for an involuntary intoxication instruction, and (2) by excluding expert testimony relevant to her defense of involuntary intoxication. We overrule appellant's issues and affirm the trial court's judgment. In her first issue, appellant contends the trial court abused its discretion by refusing to instruct the jury on her defense of involuntary intoxication. Insanity caused by involuntary intoxication is an affirmative defense to prosecution if, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815, 818 (Tex.Crim.App. 2002); Torres v. State, 585 S.W.2d 746, 749 (Tex.Crim.App. 1979). The defense does not, however, apply to persons who are unconscious or semi-conscious at the time of the alleged offense. Mendenhall, 77 S.W.3d at 818. Likewise, the defense does not apply when, as here, a defendant's mental state is not an element of the alleged offense. See Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.-El Paso 1997, no pet.) (proof of culpable mental state not required to convict for driving while intoxicated, thus, involuntary intoxication cannot be defense to such a charge); Beasley v. State, 810 S.W.2d 838, 841 (Tex.App.-Fort Worth 1991, pet. ref'd) (insanity is not a defense to charge of DWI). To the extent appellant argues involuntary intoxication addresses the issue of whether appellant acted voluntarily, we disagree. The defenses of involuntary intoxication and involuntary act are separate and distinct. See Mendenhall, 77 S.W.3d at 818. Appellant requested an instruction on involuntary intoxication. She did not, however, request an instruction regarding the defense of an involuntary act. Her proposed instruction tracks the language from Torres, in which the court of criminal appeals first adopted the defense of involuntary intoxication, concluding the test for insanity is applicable to the "parallel" issue of involuntary intoxication. Torres, 585 S.W.2d at 749. We recognize that appellant's proposed instruction defines the term "involuntary intoxication" as intoxication resulting where the defendant exercised no independent judgment or volition in taking the intoxicant. However, we fail to see how this definition apprised the court that appellant was intending to argue that she did not engage in a voluntary act when she drove her car. Nor does the record indicate that the trial court understood that appellant really wanted an instruction on an involuntary act. Rather, the record shows that the trial court understood appellant to be asking for an instruction on involuntary intoxication, a defense which negates intent. See id. If appellant wanted a jury instruction on the lack of voluntary conduct, it was incumbent upon her to tell the trial court exactly what she wanted. Rogers v. State, No. 1412-01, slip op at 10, 2003 WL 21184509, at * 6 (Tex. May 21, 2003). Because appellant requested only an involuntary intoxication instruction and did not make any attempt to clarify she wanted an instruction on voluntary conduct, we cannot conclude the trial court erred by denying appellant's request. Id. We overrule appellant's first issue. In her second issue, appellant contends the trial court erred by excluding expert testimony relevant to her defense of involuntary intoxication. A defendant has the right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401. Evidence must be both material and probative to be relevant. Miller, 36 S.W.3d at 507. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. Id. We have concluded the defense of involuntary intoxication is not applicable to this case. Further, we have concluded that the record does not show the trial court was aware that appellant wanted to show the lack of voluntary conduct rather than a lack of intent. Thus, it follows that the trial court's determination that the excluded evidence was not relevant is not "outside the zone of reasonable disagreement." See Tex.R.Evid. 401; Miller, 36 S.W.3d at 507. Under these circumstances, we cannot conclude the trial court abused its discretion by excluding the expert testimony. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.