Comment

The Committee gave significant consideration to whether it should recommend an instruction on involuntary intoxication or some related bar to liability. It considered two possibilities but decided not to recommend instructions of either sort for intoxication offenses. For further discussion of the defense of involuntary intoxication, see chapter 8.

“Insanity” by Involuntary Intoxication.
In Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979), the court of criminal appeals held in effect that involuntary intoxication is a mental disease or defect that can trigger insanity under section 8.01 of the Texas Penal Code. Modified to accommodate post-1979 changes in the definition of “insanity,” Torres establishes generally that involuntary intoxication is an affirmative defense to criminal culpability when the defendant shows that (1) he exercised no independent judgment or volition in taking an intoxicant, and (2) as a result of the intoxication resulting from his taking the intoxicant, he did not know that his conduct was wrong. As the court recognized in Mendenhall v. State, 77 S.W.3d 815, 816 (Tex. Crim. App. 2002), this is the “affirmative defense of insanity due to involuntary intoxication.”

Later the same year as the Torres decision, the court suggested the involuntary intoxication “defense” recognized in Torres would apply in prosecutions under the intoxication offenses. See Hardie v. State, 588 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1979).

Hardie was a prosecution for what was then involuntary manslaughter under Tex. Penal Code § 19.05(a)(2)(a). The offense was “by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, caus[ing] the death of an individual.” Hardie, 588 S.W.2d at 938. Rejecting Hardie’s claim that the trial court erred by failing to require the state to allege and prove that the intoxication was voluntary, the court explained:

Hardie, 588 S.W.2d at 939. The Torres defense would apply, this suggests, if the facts supported it.

Despite Hardie’s hint that Torres would apply to what is now intoxication manslaughter, the courts of appeals have been unwilling to require in these cases that trial judges give instructions on insanity by involuntary intoxication.

Most have followed the approach of Aliff v. State, 955 S.W.2d 891, 892–93 (Tex. App.—El Paso 1997, no pet.), a prosecution for driving while intoxicated in which the defendant claimed his intoxication was involuntary because it was caused by prescription medication. Under Beasley v. State, 810 S.W.2d 838, 841 (Tex. App.—Fort Worth 1991, pet. ref’d), the court in Aliff reasoned, the Torres involuntary intoxication defense does not apply to driving while intoxicated and thus the trial court did not err in refusing Aliff’s request for a jury charge on involuntary intoxication. Accord Otto v. State, 141 S.W.3d 238, 241 (Tex. App.—San Antonio 2004) (“The offense of driving while intoxicated does not include as an element a culpable mental state. Therefore, the defense of involuntary intoxication is not relevant to the offense of driving while intoxicated.”) (citations omitted), pet. granted, 173 S.W.3d 70 (Tex. Crim. App. 2005) (per curiam); Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.—Fort Worth 2004, no pet.); Stamper v. State, No. 05-02-01730-CR, 2003 WL 21540414 (Tex. App.—Dallas July 9, 2003, pet. ref’d) (not designated for publication); Godby v. State, No. 04-00-00334-CR, 2001 WL 752709 (Tex. App.—San Antonio July 5, 2001, no pet.) (not designated for publication); Bearden v. State, No. 01-97-00900-CR, 2000 WL 19638 (Tex. App.—Houston [1st Dist.] Jan. 13, 2000, pet. ref’d) (not designated for publication); Smith v. State, No. 03-97-00386-CR, 1998 WL 303880 (Tex. App.—Austin June 11, 1998, no pet.) (not designated for publication).

Some members of the Committee were not persuaded by the analyses of the courts of appeals. Insanity (and hence insanity by involuntary intoxication), they reasoned, is apparently not limited to those offenses that require a culpable mental state. These members of the Committee noted that in Hardie itself the court of criminal appeals indicated involuntary intoxication would be available as a defense despite its conclusion that the statute at issue imposed strict liability. They also believed that the circumstances under which some defendants become intoxicated justify exempting them from criminal responsibility and that the insanity by involuntary intoxication defense is the only available vehicle by which to provide for this.

The majority of the Committee, however, relied on the considerable authority that insanity by involuntary intoxication is not available in prosecutions for the strict liability intoxication offenses. The majority also was unconvinced that application of the insanity standard—not knowing the conduct was “wrong”—would serve to identify those defendants whose intoxication justified exonerating them from these offenses.

The Committee therefore decided not to recommend an instruction on insanity by involuntary intoxication for use in intoxication offense cases.

Voluntary Act or “Automatism.”
Defendants charged with intoxication offenses have sometimes sought instructions that criminal responsibility might be barred by the requirement set out in Tex. Penal Code § 6.01(a) that criminal liability be based on a voluntary act.

The year after Hardie v. State, the court of criminal appeals indicated that then-sec-tion 19.05(a)(2)(a) of the Penal Code, which covered what is now intoxication manslaughter, “requires the intoxication to be voluntary, thus satisfying the mandate of V.T.C.A. Penal Code, § 6.01 that conduct cannot be criminal unless it is voluntary.” See Guerrero v. State, 605 S.W.2d 262, 264 n.1 (Tex. Crim. App. 1980). This suggests that, independent of insanity by involuntary intoxication under Torres, 585 S.W.2d at 749, involuntary intoxication might bar conviction for certain intoxication offenses by establishing that the state has failed to prove under Code section 6.01 that the intoxication implicated in the offense was voluntary.

In one driving while intoxicated case, for example, the defendant testified that if he was intoxicated, he had not voluntarily drunk the substance that made him intoxicated. “This is a defense under section 6.01 of the penal code,” the court of appeals commented, and “[t]he trial court correctly charged the jury on this defense.” Andrews v. State, No. 05-96-00087-CR, 1998 WL 484610, at *4 (Tex. App.—Dallas Aug. 19, 1998, no pet.) (not designated for publication).

There has been some confusion regarding the relationship between section 6.01(a)’s requirement and insanity by involuntary intoxication. Stamper, 2003 WL 21540414, at *1 (defendant’s request for instruction on involuntary intoxication did not preserve any error in trial court’s refusal to give instruction on “the defense of an involuntary act”).

The distinction, however, was carefully drawn in Nelson, 149 S.W.3d 206, and instructions on the voluntary act requirement were held unnecessary.

Nelson sought instructions that “[a] person commits an offense only if he voluntarily engages in conduct, including . . . a bodily movement, whether voluntary or involuntary.” Nelson, 149 S.W.3d at 210. He also requested an instruction defining a “voluntary act” as a “conscious act.” By these requests, the court indicated, Nelson was attempting to raise what Mendenhall, 77 S.W.3d 815, described as the defense of “automatism” sometimes available under Code section 6.01. It continued:

Nelson, 149 S.W.3d at 211–12 (citations omitted). See also Peavey v. State, 248 S.W.3d 455, 464–66 (Tex. App.—Austin 2008, pet. ref’d) (no error in refusing instruction on voluntary act or automatism in prosecution for felony driving a motor vehicle while intoxicated and evading arrest).

Some members of the Committee believed—as suggested by Nelson—that the intoxication offenses permitted at most a claim that the operation of a vehicle was “involuntary.” The requirement of intoxication, they reasoned, is essentially a “circumstance” element and need not itself be the consequence of conduct—voluntary or otherwise—by the defendant. Seldom or never, they concluded, would defendants be able to make viable cases that their operation of the vehicles was involuntary.

Some members of the Committee believed that if unconsciousness is caused by ingestion of intoxicating substances, this removes the situation from section 6.01(a). A defendant’s only possible defensive use can be involuntary intoxication under Torres, and that defense is unavailable under the authorities cited above.

The Committee as a whole decided that the applicability of the voluntary act requirement to the intoxication offenses was sufficiently in doubt that it should not recommend an instruction on involuntary conduct or automatism for use in intoxication cases.