Comment

The significance of voluntary intoxication to criminal liability is addressed by section 8.04 of the Texas Penal Code. This statute has a long history.

In 1881, the legislature enacted the predecessor to the current provision. The operative portion of the 1881 statute provided: “[N]either intoxication, nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, shall constitute any excuse in this State for the commission of crime, nor shall intoxication mitigate either the degree or the penalty of crime . . . .” Act approved Feb. 17, 1881, 17th Leg., R.S., ch. 14 § 1, 1881 Tex. Gen. Laws 9, reprinted in 9 H.P.N. Gammel, The Laws of Texas 1822–1897, at 101 (Austin, Gammel Book Co. 1898).

The Forty-sixth Legislature in 1939 responded to decisions limiting the statute to intoxication from alcohol by replacing the reference to “ardent spirits” with the broader phrase “ardent spirits, intoxicating liquor, or narcotics, or a combination thereof.” Acts 1939, 46th Leg., R.S., ch. 1, § 1 (H.B. 988), eff. May 15, 1939, repealed by Acts 1973, 63d Leg., R.S., ch. 399, § 1 (S.B. 34), eff. Jan. 1, 1974.

The 1974 revision of the Penal Code replaced the older language with newer terminology specifying that voluntary intoxication is not a defense. Nothing in the Penal Code defines “voluntary intoxication.”

Current practice is to instruct juries as was done in Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009): “You are instructed that voluntary intoxication does not constitute a defense to the commission of the crime. By the term ‘intoxication’ as used herein is meant disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” Current practice is to include no definition of “voluntary.”

Court of criminal appeals’ case law makes clear that the statutory provision bars juries from considering evidence of voluntary intoxication as negating or casting doubt on the state’s proof of culpable mental state, even if that evidence logically tends to show the defendant lacked the culpable mental state required. Specifically, the case law makes clear that the jury instruction need not qualify its statement of the statutory rule by telling jurors that despite the rule they may consider voluntary intoxication as tending to show the defendant could not, or did not, have the culpable mental state required by the charged offense. E.g., Crew v. State,23 S.W. 14 (Tex. Crim. App. 1893); accord McElroy v. State, 528 S.W.2d 831 (Tex. Crim. App. 1975).

The court of criminal appeals regards the statute as barring juries from considering this evidence on culpable mental state. In Jaynes v. State, 673 S.W.2d 198 (Tex. Crim. App. 1974), for example, the conviction was for failure to stop and render aid. The court acknowledged that whether Jaynes was aware that an accident had occurred was at issue in the case. Finding no error in the jury instruction, however, it noted that under the law and the instructions given, “The jury was free to find that appellant had no knowledge of the accident as long as they did not attribute that lack of knowledge to intoxication.” Jaynes, 673 S.W.2d at 202.

The court of criminal appeals has made clear that, while Tex. Penal Code § 8.04 bars a defendant from using evidence of intoxication to challenge his culpable mental state, even absent section 8.04 a voluntary intoxication instruction would not otherwise be appropriate: “No statute authorizes a defense of intoxication, or a special instruction on the mitigating value of intoxication, with respect to the guilt phase of trial in a capital murder case, nor does any statute make the absence of intoxication an element of the offense of capital murder.”  Davis v. State, 313 S.W.3d 317, 330 (Tex. Crim. App. 2010). Moreover, the court continued, an unauthorized instruction would be a comment on the weight of the evidence.

Some members of the Committee believed that the instructions should explicitly convey to jurors what all agree is Texas law—that jurors are barred from giving effect to even credible defense evidence that the defendant, because of intoxication, did not have the required culpable mental state.

Some members of the Committee also believed the jury instructions should address what they regarded as a logical inconsistency between instructions purporting to require proof of an actual culpable mental state and other instructions directing the jury to ignore what may be evidence logically indicating the lack of that culpable mental state.

Montana v. Egelhoff, 518 U.S. 37 (1996), made clear that the Supreme Court would not find the Texas approach to violate federal constitutional standards. It did not, however, address what if any federal constitutional considerations might bear on how this substantive law needs to be explained to jurors.

The concerns of these members of the Committee are illustrated by Robinson v. State, 971 S.W.2d 96 (Tex. App.—Beaumont 1998, pet. ref’d), a murder prosecution in which the jury had before it some evidence of intoxication. During deliberations, the jury returned a note: “If can’t (sic) use intoxication as a defense how does that affect how a person’s mind would be at time of offense— & if someone is intoxicated how can we compare that to anyone else that is reasonable.” Robinson, 971 S.W.2d at 98. Over defense objection, the trial court responded—

Robinson, 971 S.W.2d at 98. The court of appeals assumed—for reasons not made clear—that the trial judge erred by giving the final sentence but that this did not affect the defendant’s substantial rights and thus was harmless error. Robinson, 971 S.W.2d at 98–99.

A majority of the Committee, however, concluded that limiting the jury instructions to the statutory language sufficiently conveyed the substance of the legislative position to jurors. Any effort to explain the legislative position further, they concluded, would serve no practical function but would significantly increase the risk of confusing jurors.