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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
In Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979), the court of criminal appeals concluded that it would be “inconsistent” to deny the defense created by the insanity statute to a person who loses his ability to perceive the culpability of his conduct because of involuntary intoxication. As a result, “[w]e find that the defense of involuntary intoxication is well founded in the common law and implicit in our statutory scheme.” Torres, 585 S.W.2d at 749. It added that the test used for insanity is to be used to determine whether an involuntarily intoxicated person is to be relieved of the criminal consequences of his act. Torres, 585 S.W.2d at 749.
The precise basis for Torres’s holding is not entirely clear. Conceptually, Torres may have meant that involuntary intoxication was—or at least could be found to be by a trier of fact—a kind of severe mental disease or defect that would literally trigger insanity as provided for in the Texas Penal Code and the Texas Code of Criminal Procedure. This, however, would mean that acquittal on this basis would result in a verdict of not guilty by reason of insanity, which would in turn set in motion the process for evaluation and possible commitment under the Code of Criminal Procedure.
Alternatively, Torres may have been an exercise of some sort of common-law authority in the judiciary to recognize defenses for which the legislature made no provision in the Penal Code or otherwise. If this is the case, it is not entirely clear why, given Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), a jury instruction on the defense is permitted. See Alexander v. State, No. 03-01-00263-CR, 2002 WL 436993 (Tex. App.—Austin Mar. 21, 2002, no pet.) (not designated for publication) (“Whether Torres remains good law is open to question in light of the recent holding in Giesberg . . . .”).
The appellate courts considering this issue have determined that because the offense of driving while intoxicated does not require a culpable mental state, involuntary intoxication cannot be a defense. See Brown v. State, 290 S.W.3d 247, 250 (Tex. App.—Fort Worth 2009, pet. ref’d). See also CPJC 49.9.