Comment

There was agreement that under Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. [Panel Op.] 1979), certain evidence of involuntary intoxication entitled a defendant to some sort of instruction. The Committee was somewhat split, however, on specifically how Torres should be implemented in jury instructions.

Torres itself is not of much help. The court there found reversible error in the trial judge’s failure to instruct the jury on involuntary intoxication. Defendant Torres had sought an instruction directing the jury “to acquit her if they found that she was involuntarily intoxicated and further found that she did not act voluntarily in the commission of the offense because of this intoxication.” Torres, 585 S.W.2d at 748. The court held that the trial judge did not err in failing to give the requested instruction because it did not accurately state the applicable law. The request for the inaccurate instruction nevertheless preserved the error in failing to give any instruction at all on the subject. Torres, 585 S.W.2d at 749–50.

Some members of the Committee noted that in Mendenhall v. State, 77 S.W.3d 815, 817 (Tex. Crim. App. 2002), the court of criminal appeals explained: “In Torres v. State . . . we held that the defense of insanity due to involuntary intoxication was ‘implicit’ in the language of § 8.01(a).” This, these members believed, suggested that jury submission should be under Texas Penal Code section 8.01’s insanity defense.

Such an instruction might tell the jury to acquit the defendant only if the defense evidence showed that as a result of involuntary intoxication the defendant suffered from a mental disease or defect and as a result did not know his conduct was wrong. It might be labeled “Insanity by Involuntary Intoxication.” This approach would tie the involuntary intoxication defense closely to its only possible statutory basis, the insanity defense in section 8.01.

But this approach may also suggest that the jury be told that if it resolved the matter in favor of the defendant, this should result in a verdict of not guilty by reason of insanity. This, in turn, would trigger the procedure in chapter 46C of the Code of Criminal Procedure for processing a defendant acquitted on insanity grounds. Even those members of the Committee favoring tying involuntary intoxication to section 8.01 believed this would be undesirable. The chapter 46C procedure assumes the acquittal was based on a potentially continuing impairment of the defendant—a “severe mental disease or defect.” See Tex. Penal Code § 8.01(a). Any acquittal on involuntary intoxication grounds would not be based on such impairments but rather on the temporary effect of intoxicating substances.

Consequently, the Committee concluded, not without difficulty, that Torres establishes that Texas law establishes an affirmative defense of involuntary intoxication implicit in the insanity defense. Whether involuntary intoxication should result in acquittal, under Torres, depends on whether the evidence shows that the defendant meets the standard that section 8.01(a) provides for an insanity defense based on a severe mental disease or defect.

The defense should be explained to the jury in terms of an involuntary intoxication defense rather than as a variant of insanity. Finally, the Committee recommends the jury be told that a defendant successful in asserting the defense is entitled to a simple “not guilty” verdict.

On the other hand, the court of criminal appeals in Giesberg v. State, 984 S.W.2d 245, 250–51 (Tex. Crim. App. 1998), made clear that if a defense is not set out in the Penal Code, as a defense or an affirmative defense, the defendant is not entitled to a stand-alone instruction.

The court in Mendenhall was compelled to tie involuntary intoxication to the insanity defense set forth in Penal Code section 8.01 to label it an affirmative defense. Mendenhall, 77 S.W.3d at 815, 818 (the legislature intended section 8.01(a) to encompass the defense of insanity due to involuntary intoxication; it is now an affirmative defense to prosecution that, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong). Thus, an argument could be made that a correct charge would require the jury to be instructed that at the time of the defendant’s conduct, as a result of severe mental disease or defect, he did not know that his conduct was wrong.

Some members of the Committee reasoned that a charge on involuntary intoxication should include (1) as a result of a severe mental defect or disease caused by involuntary intoxication (2) the defendant did not know his conduct was wrong, in order to be consistent with case law. Mendenhall, 77 S.W.3d at 818. The concern is predicated on the belief that, by deleting from the charge the language “as a result of a severe mental disease or defect,” the charge may fail to follow the mandate of that provision. Without that language, the charge is not an insanity charge as required by Mendenhall. Rather, it might be construed as a charge on the defense of “involuntary intoxication,” which is not authorized by the Penal Code and runs afoul of the Giesberg holding.

Burden of Proof. Torres did not explicitly address whether involuntary intoxication should be treated as an affirmative defense, with the defendant having the burden of proof, or as a defense, with the prosecution having the burden of proving that it does not apply. But Torres’s reliance on the insanity defense as at least a partial basis for the involuntary intoxication defense suggests the matter should be treated as an affirmative defense.

A number of case discussions have assumed this to be the case. Ex parte Martinez, 195 S.W.3d 713 (Tex. Crim. App. 2006), for example, described Mendenhall as standing for the proposition that “it is an affirmative defense to prosecution that, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong.” Ex parte Martinez, 195 S.W.3d at 722 (emphasis added). See also Hardie v. State, 588 S.W.2d 936, 939 (Tex. Crim. App. 1979) (in Torres, “this Court has held that a defendant may raise the affirmative defense of involuntary intoxication”) (emphasis added); Strickland v. State, No. 09-09-00081-CR, 2010 WL 546727, at *2 (Tex. App.—Beaumont Feb. 17, 2010, no pet.) (not designated for publication) (“Involuntary intoxication is an affirmative defense to a criminal indictment if, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong.”).

The Committee was persuaded that the court of criminal appeals intended involuntary intoxication, like insanity, to have the procedural characteristics of an affirmative defense.

Definition of “Involuntary” Intoxication Generally. A major problem for the Committee was formulating a satisfactory definition of the involuntary intoxication required by the defense.

On the rare occasions when instructions have addressed involuntary intoxication and defined that term, they have relied on the following language from Torres: “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, 585 S.W.2d at 748 (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 Brockman v. State, No. 05-01-00064-CR, 2002 WL 24395 (Tex. App.—Dallas Jan. 10, 2002, pet. ref’d) (not designated for publication), for example, the instruction provided:

Brockman, 2002 WL 24395, at *2.

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:

Commonwealth v. Smith, 831 A.2d 636, 640 n.3 (Pa. Super. Ct. 2003).

The instruction at CPJC 8.29 contains a definition that avoids the Texas case law’s somewhat awkward phraseology but is consistent with that case law.

Definition of “Involuntary” Intoxication—Substances Taken on Medical Advice. Should a defendant be able to base the defense on evidence that he introduced into his body a substance he was aware might cause “a disturbance of mental or physical capacity” but that he did so on medical advice? One Texas court has suggested not: “Involuntary intoxication by prescription medication occurs only ‘if the individual had no knowledge of possible intoxicating side effects of the drug, since independent judgment is exercised in taking the drug as medicine, not as an intoxicant.’ ” Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.—Fort Worth 2004, no pet.) (quoting Mendenhall v. State, 15 S.W.3d 560, 565 (Tex. App.—Waco 2000), rev’d on other grounds, 77 S.W.3d at 818).

Most jurisdictions (and, as indicated above, the Model Penal Code) appear to provide otherwise. This is apparently on the rationale that a patient is entitled to rely on an assumption that a health professional would not direct the taking of such a substance unless the possible resulting disturbances of capacity were minimal or justified by the medical need for the substance. Of course, a defendant who takes medication contrary to the terms of the medical advice does not take it pursuant to that advice and the resulting intoxication is not involuntary for purposes of this defense.

The Committee considered adding to the definition of involuntary intoxication the following:

A majority of the Committee concluded, however, that there was sufficient doubt whether this reflected Texas law and that it should not be included.