Opinion
No. 2-08-411-CR
Delivered: November 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
Appealed from County Criminal Court No. 3 of Tarrant County.
PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In four issues, Appellant Angela K. Spence appeals from her conviction for Driving While Intoxicated ("DWI"). We affirm.II. Factual and Procedural Background
On New Years Day in 2007, around 1:30 a.m., Bedford Police Officer James McClure responded to a dispatch call regarding a possible intoxicated driver. After locating the vehicle described by dispatch, and observing the driver commit a traffic violation, Officer McClure initiated a stop. He McClure approached the vehicle and asked the driver, later identified as Spence, for her driver's license and insurance. While talking with Spence, Officer McClure smelled a strong odor of alcohol, noticed that Spence had bloodshot, watery eyes, and observed that she had a hard time focusing. When asked if she had been drinking, Spence informed him that she had had one glass of wine about two hours before being pulled over. Officer McClure asked Spence to step out of the vehicle so he could administer standard field sobriety tests. When Spence exited the vehicle and began walking, Officer McClure noticed that she was "very unsteady" and "needed support." After administering the field sobriety tests, Officer McClure placed Spence under arrest for DWI. He then transported her to the Bedford jail. While at the jail, Spence consented to the taking of two breath specimens, which revealed that she had a blood alcohol concentration of .200 and .204, respectively. The State charged Spence with the offense of DWI. Spence pleaded not guilty. At trial, Spence testified that on December 31, 2006, she had had two glasses of wine while eating dinner with some friends. After dinner, she had gone to a friend's condo and, although given an alcoholic beverage, had not consumed any alcohol. After leaving the condo, she had gone to the Iron Cactus, a Mexican grill and margarita bar, where she remembered having one glass of wine. Her last memory before giving her thumb print in jail was of dancing with her friend, Baxter, at the Iron Cactus and of Baxter leaving her to go get himself a drink.When questioned about whether she had ever been intoxicated before, Spence testified to the following:
[State]: Have you ever been intoxicated before?
[Spence]: Yes.
[State]: And how much did you drink to make yourself intoxicated?
[Spence]: I have not had that much before in my life, but probably a lot. Maybe — I had shots one time, so shots did it.
[State]: Do you remember how many shots?
[Spence]: Probably four or so.
. . .
[State]: The night that you got intoxicated on those shots
[Spence]: Yeah.
[State]: You woke up the next morning. Do you remember everything that happened the night before?
[Spence]: I mean, most of it, yeah.
[State]: But not everything.
[Spence]: I mean, I don't know to be sure, but I have not been drunk that often, but I think I remember most everything.In addition to Spence's testimony, the defense introduced evidence regarding C.M., another patron at the Iron Cactus on the night in question, who had allegedly been drugged and sexually assaulted. The defense argued that, like C.M., Spence must have been drugged too and that it was the drug that caused her to continue drinking. To support this argument, the defense introduced an affidavit from E.W., a friend of C.M.'s, stating that C.M.
is a friend of mine and was staying in my home during the holidays, December 2006.
She went to dinner with me, my roommate, and other friends of mine on 12/31/06 until approx. 10:30 or 11:00 pm. [T]hen we went together to Iron Cactus Bar Grill for a New Year's Eve party. We arrived at the party at approx. 11:00 pm.
I left the party with several friends around 1:30 am 01/01/07 and [C.M.] stayed behind with my roommate. She had not been acting questionably — she was lucid, calm, and in control when I left the party. [C.M.] did not return home that night. The next morning, [C. .M.]'s mother called my roommate and told us that [C.M.] suspected that she had been given a date-rape drug and possibly raped, and that [C.M.] had gone to Parkland Hospital to see a doctor as a result of her suspicion. At that point, my roommate and I went to meet [C.M.] @ Parkland.The defense also introduced C.M.'s medical records, which showed that C.M. had been admitted to the hospital and tested for STD exposure. The medical records did not confirm that C.M. had been drugged or sexually assaulted. On cross-examination, the State questioned Spence on whether she had ever undergone any kind of testing to determine if she had been drugged. Spence responded that she had not. On recross-examination, when questioned further about whether she had been tested, Spence responded, "I mean, I didn't get a test afterwards, so — but the assumption is absolutely that, you know, there was something else involved." After taking the matter under advisement, the trial court found Spence guilty of the offense of DWI. During a combined hearing on Spence's "Motion for Reconsideration of Judgment" and on punishment, the trial court orally stated that "there was an involuntary intoxication in this case." At the close of the hearing, the trial court denied Spence's motion and upheld its judgment of guilty. The trial court sentenced Spence to 120 days' confinement and assessed a $550 fine, suspended the sentence, and placed her on twelve months of community supervision. This appeal followed.
III. Involuntary Act
In her first three issues, Spence argues that the trial court's finding that Spence was involuntarily intoxicated constitutes a finding that her intoxication was the result of an involuntary act — that is, that Spence did not voluntarily become intoxicated — and, thus, the evidence is legally insufficient to support her conviction. We disagree.A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).B. Applicable Law
A person who commits an act in violation of a strict liability statute may be held criminally liable even though she might be innocent of any criminal intent. See State v. Walker, 195 S.W.3d 293, 298 (Tex. App.-Tyler 2006, no pet.). Strict liability statutes are traditionally associated with the protection of public health, safety, or welfare. Aguirre v. State, 22 S.W.3d 463, 473 (Tex. Crim. App. 1999). Generally, the more serious the consequences to the public, the more likely the legislature meant to impose liability without regard to fault. Thompson v. State, 44 S.W.3d 171, 180 (Tex. App.-Houston [14th Dist.] 2001, no pet.). In most strict liability offenses, the statutes protect unwitting and unwilling members of the public from the noxious and harmful behavior of others in situations in which it would be difficult for members of the public to protect themselves. Id. If a statute plainly dispenses with a culpable mental state as an element of the offense, it is a strict liability statute. See Walker, 195 S.W.3d at 298. Under Texas law, a person commits DWI "if the person is intoxicated while operating a motor vehicle in a public place." Tex. Penal Code Ann. § 49.04 (Vernon 2003). A person is intoxicated if she does not have "the normal use of mental or physical faculties by reason of the introduction of alcohol . . . or any other substance into the body." Id. § 49.01(2). Under chapter 49 of the penal code, proof of a culpable mental state is not required for a DWI conviction. Id. § 49.11; see Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975). Therefore, DWI is a strict liability offense. See Walker, 195 S.W.3d at 298. Section 6.01(a) of the penal code provides, however, that, "[a] person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). In Rogers v. State, the court of criminal appeals addressed what this requirement means:[T]he `voluntary act' requirement does not necessarily go to the ultimate act . . . but only that criminal responsibility for the harm must `include an act' that is voluntary. . . .
[C]onduct [is not] rendered involuntary merely because an accused does not intend the result of his conduct. Therefore, the issue of the voluntariness of one's conduct, or bodily movements, is separate from the issue of one's mental state. . . .
. . .105 S.W.3d 630, 638 (Tex. Crim. App. 2003) (emphasis added). Various courts of appeals, in addressing the issue of voluntariness, have looked at "involuntary act" or "automatism" as a defense to DWI. See, e.g., Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.-Austin 2008, pet. ref'd) (providing a detailed analysis and application of automatism as a defense to DWI); see also Stamper v. State, No. 05-02-01730-CR, 2003 WL 21540414, at *1 (Tex. App.-Dallas July 9, 2003, pet. ref'd) (mem. op., not designated for publication) (acknowledging that the appellant incorrectly argued involuntary intoxication when she should have argued involuntary act); Waters v. State, No. 01-96-00631-CR, 2001 WL 754759, at *3 (Tex. App.-Houston [1st Dist.] June 29, 2001, no pet.) (not designated for publication) (analyzing whether appellant voluntarily became intoxicated). In order to assert "involuntary act" as a defense, however, the defendant must produce "evidence of an independent event, such as the conduct of a third party, that could have precipitated the incident." Rhodes v. State, 997 S.W.2d 692, 694 (Tex. App.-Texarkana 1999, pet. ref'd) (citing Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997)). In addition, the defense is available only "if the accused admits committing the act or acts charged and seeks to absolve [herself] of criminal responsibility for engaging in the conduct." Peavey, 248 S.W.3d at 465; Trujillo v. State, 227 S.W.3d 164, 169 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).