Chapter 8
General Defenses
8.26 Instruction—Voluntary Intoxication
[Insert instructions for underlying offense. Include the following in the definitions unit if applicable and not included already.]
Intoxication
“Intoxication” means a disturbance of mental or physical capacity resulting from the introduction of any substance into the body.
[Include the following in the application of law to facts unit.]
Voluntary Intoxication
Voluntary intoxication is not a defense to the commission of a crime.
But you are reminded that the state must prove all elements of the offense beyond a reasonable doubt.
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
When Instruction Should or May Be Given. “[A] Section 8.04(a) instruction is appropriate if there is evidence from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions.” Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (citing Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994)). It may be appropriate even if the defense does not explicitly argue to the jury that the evidence of intoxication is in any way exculpatory. Only slight evidence is sufficient.
In Sakil, there was no direct evidence that Sakil was intoxicated at the time of the charged assault. The court concluded, however, that an instruction was permissible because the defense pursued evidence that Sakil engaged in bizarre behavior the day of the offense and had an extensive history of substance abuse. It added—
Had Appellant not pursued testimony relating to his bizarre behavior the day of the offense and his extensive history of substance abuse, the following facts would support Appellant’s position that “there was no evidence from which the jury could conclude Appellant was voluntarily intoxicated”: (1) he had just been released from jail, so he did not have a significant amount of time to obtain drugs or alcohol, (2) [the assault victim] reported to the 911 operator that Appellant was not intoxicated at the time of the offense, (3) Appellant stated that his amphetamine use occurred at the age of eighteen, and (4), he told the physician that he was not taking his medication for hallucinations at the time of the offense.
Sakil, 287 S.W.3d at 27 n.9.
Definition of “Voluntary Intoxication.” Texas instructions never define voluntary intoxication. On the rare occasions when instructions address involuntary intoxication and define that term, they rely on the following: “To constitute involuntary intoxication, there must be an absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant.” Torres v. State, 585 S.W.2d 746, 748 (Tex. Crim. App. [Panel Op.] 1979) (quoting Hanks v. State, 542 S.W.2d 413, 416 (Tex. Crim. App. 1976) (citing Johnson v. Commonwealth, 115 S.E. 673, 677 (Va. 1923))).
In Hanks, the court held that involuntary intoxication was not raised because the defendant acknowledged suspecting that “something” had been placed in his drink. “If appellant was aware that a suspected drug had been placed in his drink, as he testified, and in spite of such knowledge he drank the beverage, any intoxication resulting therefrom could not be classified as involuntary.” Hanks, 542 S.W.2d at 416.
It seems clear from the rather awkward definition of involuntary intoxication that intoxication is voluntary if it results from “volition” in ingestion of a substance known to have intoxicating characteristics. Volition apparently means simply the absence of duress.
Perhaps most importantly, the intoxication need not be the result of a decision to become intoxicated.
In other jurisdictions, jury instructions are often based on statutory provisions in turn based on the Model Penal Code:
The Model Penal Code uses the term “self-induced” intoxication, rather than “voluntary” intoxication, and defines that term to mean, intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime. Model Penal Code § 2.08(5)(b).
Commonwealth v. Smith, 831 A.2d 636, 640 n.3 (Pa. Super. Ct. 2003). The provision for substances introduced pursuant to medical advice seems to cover prescription medications taken in a manner complying with directions. The extent to which it covers over-the-counter medications or substances is not clear. The provision for “circumstances as would afford a defense to a charge of crime” apparently refers to duress.
The Committee concluded that the Texas instruction should not attempt to define “voluntary” as it is used in the voluntary intoxication instruction. There is no statutory definition and no case law approving any particular definition. As applied in most situations, the term has a commonly understood meaning. If in a particular case an issue regarding possible involuntary intoxication is presented, an instruction on it will adequately distinguish the two kinds of intoxication.
Voluntary Intoxication Disproving Commission of Crime. A defendant may argue that the charged offense requires more physical ability to commit the offense than the defendant had at the time, given the evidence that the defendant was at that time perhaps voluntarily intoxicated. Skinner v. State, 956 S.W.2d 532, 540 (Tex. Crim. App. 1997) (defense theory in capital murder case was that defendant, because of intoxication, was mentally and physically unable to commit charged murders). Nothing suggests that a defendant is barred by Texas voluntary intoxication law from relying on such a defensive theory.
The impropriety of a jury instruction on such a defensive theory would seem to be clear from Giesberg v. State, 984 S.W.2d 245, 249 (Tex. Crim. App. 1998): “Alibi is similar to other defensive issues which also negate an element or elements of the State’s burden of proof, but do not warrant special jury instructions.” Voluntary intoxication, under this defensive theory, is like alibi in that it simply contests the sufficiency of the state’s evidence that the defendant engaged in the conduct constituting the crime or caused the result required by the crime. Under Giesberg, a jury instruction would seem to be a prohibited comment on the evidence.
Perhaps, however, Giesberg’s rationale does not apply if other proper parts of the jury instructions create a risk that the jury will misunderstand that the law bars defense reliance on the defensive theory at issue. The statement that voluntary intoxication is not a defense to the commission of crime might be construed by a jury as meaning that it cannot be considered in determining whether the defendant committed the offense.
Some members of the Committee were persuaded that in the unusual case raising a question of this sort, the general intoxication instruction posed too great a risk of obscuring that voluntary intoxication may be properly considered in this way. They would prefer that in such cases the instructions include the following:
If the evidence that the defendant was intoxicated raises in your mind a reasonable doubt about whether the defendant engaged in the conduct or caused the result required by the crime, you must find the defendant “not guilty.”
A defendant should be entitled to an instruction legitimizing this defensive theory, they believed, if both (1) the evidence would permit a reasonable jury to find a reasonable doubt about whether because of intoxication the defendant committed the charged offense and (2) the jury instructions will contain a general admonition to the effect that voluntary intoxication is not a “defense.”
A majority of the Committee, however, concluded that it should take no position on the matter.
Comment
The definition of intoxication is based on Tex. Penal Code § 8.04(d). The role of voluntary intoxication in criminal liability is addressed in Tex. Penal Code § 8.04.
Given the substance of voluntary intoxication law, an instruction on voluntary intoxication generally favors the state. It is essentially an instruction on what is not a defense, that is, on what does not prevent criminal liability.