Comment

Tex. Penal Code § 49.10 provides that “[i]n a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.”

Under this provision, a jury might be instructed as follows:

The Committee does not recommend such an instruction, because this is too likely to be a prohibited comment on the evidence.