Scott C. BROWN, Appellant, v. The STATE of Texas, State.
No. 2-08-041-CR.
Court of Appeals of Texas, Fort Worth.
Feb. 12, 2009.
Rehearing En Banc Overruled April 16, 2009.
Discretionary Review Refused Sept. 16, 2009.
Clark Construction provided workers’ compensation coverage to all of the employees whо worked at the site as part of its contract with Way Engineering. Way Engineering‘s contract with Walsh & Albert incorporated by reference all of the provisions of the contract between Clark Construction and Way Engineering. Consequently, Walsh & Albert and its employees were also covered by the workers’ compensation insurance policy that Clark Construction purchased. Therefore, as a general contractor who provided workers’ compensation coverage, Way Engineering became Walsh & Albert‘s “employer” for purposes of the workers’ compensation statute. Walsh & Albert, and its employees, became Way Engineering‘s “employees.”
Id. at 767 (internal citations omitted).
As we stated in Etie, the purposes of the Act are best served by deeming immune from suit all subcontractors and lower-tier subcоntractors who are collectively covered by workers’ compensation insurance. Id. at 768. The Texas legislature‘s purpose in passing the Act was to ensure injured workers could obtain reimbursement for medical expenses related to workplace injuries without the time, money, and difficulty of a negligence lawsuit. See Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 555 (Tex.2001) (Baker, J., dissenting). Another purpose of the Act is to encourage employers to participate in workers’ compensation by precluding nonsubscribing employers from relying on common-law defenses to negligence in defending against their employees’ personal-injury actions. Kroger Co. v. Keng, 23 S.W.3d 347, 350 (Tex.2000).
Under the terms of the OCIP, coverage applied to contractors as well as subcontractors who provided direct labor, as each of appellants did here. Although the OCIP deemed some contractors to be ineligible for coverage under the OCIP, none of those categories applied to appellants.
We conclude that appellants are deemed employees for purposes of the Act. See
Conclusion
We reverse the judgment of the trial court and render judgment in favor of appellants.
Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Asst. Crim. Dist. Atty., Debra Windsor, Nelda T. Cacciotti, Taylor Ferguson, Asst. Crim. Dist. Attys., Fort Worth, TX, for Appellee.
PANEL: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
OPINION
BOB McCOY, Justice.
I. Introduction
Appellant Scott C. Brown appeals from his conviction for Driving While Intoxicated-Misdemeanor Repetition. In one point, Brown asserts that the trial court erred by denying his rеquest for a special jury instruction on the defense theory of involuntary intoxication. We affirm.
II. Factual and Procedural Background
In June 2007, Michael Sands, while driving down a residential street, observed Brown driving towards him in an unsafe manner. Hoping to avoid an accident, Sands pulled his car over to the curb and came to a complete stop. However, as Brown began to pass, he hit Sands’ car, clipped a tree, and crаshed into a ditch. When the police arrived at the scene, they performed field sobriety tests on Brown. Brown failed the tests and admitted to the police that he had been drinking. Subsequently, the police took Brown to John Peter Smith Hospital where his blood alcohol content measured .09. Brown was placed in custody and charged with DWI-Misdemeanor Repetition.
During trial, Brown testified that he had сonsumed two tumblers of whiskey the night before his arrest, and that sometime during the night he had woken up to take his blood pressure medicine but had mistakenly taken Ambien. Brown further testified that, because of the mistake, he did not remember consuming more liquor or driving his car. In fact, Brown claimed that he had no memory from the time he went back to bed, after taking the Ambien, to when the nurse was drawing his blood at John Peter Smith Hosрital. Finally, Brown testified that the Ambien pills were a different color and shape than his blood pressure pills, and that he had been warned by his doctor not to take Ambien in combination with alcohol.
At the close of trial, Brown requested an involuntary intoxication jury instruction;
III. Jury Instruction—Involuntary Intoxication
In his sole issue, Brown complains that the trial court erred by denying his request for a jury instruction on involuntary intoxication. The State, however, argues that Brown was not entitled to a jury instruction on involuntary intoxication because involuntary intoxication is not a defense to DWI, where, as here, mental state is not an element of the offense.
A. Standard of Review
Apрellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of [the] defendant,” which means no more than that there must be some harm to the accused from the error.
B. Applicable Law
Under Texas law, a person commits DWI “if the person is intoxicated while operating a motor vehicle in a public place.”
C. Discussion
Here, Brown‘s sole argument is that the trial court improperly refused to include the following jury instruction:
[I]nvoluntary intoxication is a defense to prosecution for an offense when it is shown that the acсused has exercised no independent judgment or volition in taking the intoxicant, and as a result of his intoxication, the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
To support his contention that the trial court erred by refusing to submit the requested charge, Brown relies on Torres v. State, which recognized involuntary intoxication as a defense to criminal conduct.
In Torres, an aggravated robbery case, Torres‘s accomplice testified that he had put Thorazine tablets into her glass of Alka Seltzer without her knowledge about an hour before they broke into the victim‘s home. Id. at 748. The trial judge refused Torres‘s requested charge 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 the intoxication. Id.
In its decision to reverse and remand Torres‘s conviction on the basis of jury charge error, the court of criminal appeals recognized the defense of involuntary intoxication. Id. at 749. It reasoned that, even though the common law disfavored intoxication as a defense to avoid criminal responsibility because a voluntary act rendered an individual of unsound mind, the reason for disfavor did not exist when the intoxication was not self-induced. Id. at 748-49.
The Court then held that involuntary intoxication is a defense to criminal culpability when it is shown that (1) the accused has exercised no independent judgment or volition in taking the intoxicant and (2) as a result of his intoxication, the accused did not know that his сonduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated. Id. at 749 (emphasis added).
Although we have previously extended the holding in Torres to the offense of DWI, we decline to do so from this day forward for several reasons. See Nelson, 149 S.W.3d at 211; McKinnon v. State, 709 S.W.2d 805, 807 (Tex.App.-Fort Worth 1986, no pet.).1
First, the Legislature has not seen fit to include a culpable mental state in its definition of the offense. In fact, proof of a culpable mental state is expressly not required fоr conviction of an offense dealing with intoxication and for alcoholic beverage offenses.
Second, the court of criminal appeals has declined to include a culpable mental state in the offense. See Owen v. State, 525 S.W.2d 164, 164-65 (Tex.Crim.App.1975); Ex parte Ross, 522 S.W.2d 214, 217 (Tex.Crim.App.1975) (criminal or unlawful intent not essential element of driving while intoxicated), cert. denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d 390 (1975), abrogated on other grounds by Ex parte McCain, 67 S.W.3d 204, 207, 209 (Tex.Crim.App.2002).
Third, this court has followed the Legislature‘s and court of criminal appeals’ direction and held that the offense does not require a culpable mental state. See Nelson, 149 S.W.3d at 210 (holding that involuntary intoxication is a defense to criminal culpability and that proof of a culpable mental state is not required in prosecuting the offense of DWI).
Finally, other Texas courts that have considered the issue have held that the offense of DWI does not require a culpable mental state and hаve further held that involuntary intoxication is not a defense to DWI. See, e.g., Stamper, 2003 WL 21540414, at *1 (emphasizing that involuntary intoxication is not a defense to DWI and that the correct defense is involuntary act); Bearden v. State, No. 01-97-00900-CR, 2000 WL 19638, at *4 (Tex.App.-Houston [1st Dist.] Jan. 13, 2000, pet. ref‘d) (not designated for publication) (declining to extend the holding in Torres to the offense of driving while intoxicated); Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.-El Paso 1997, no pet.) (holding that proof of culpable mental state is not required for a DWI conviction, thus, involuntary intoxication cannot be a defense to such a charge).
Therefore, we hold that the trial court did not err in refusing Brown‘s request for a jury instruction on involuntary intoxication because involuntary intoxication cannot be a defense to DWI; accordingly, we overrule Brown‘s sole issue.2
IV. Conclusion
Having overruled Brown‘s sole issue, we affirm the trial court‘s judgment.
DAUPHINOT, J. filed a concurring and dissenting opinion.
I agree that involuntary intoxication is not a defense to driving while intoxicated (DWI) undеr the facts of this case. But to hold that it can never be a defense to DWI goes too far. I cannot join the majority in that sweeping statement; I therefore must respectfully dissent.
Courts have long struggled with the conflict between the due process requirement of criminalizing only conduct that involves both a culpable mental state and a criminal act (mens rea and actus reus) and the aрparent intent of the legislature to dispense with the requirement of a culpable mental state in criminalizing intoxication offenses involving the operation of a vehicle while intoxicated. In the past, we resolved the conflict by concluding that when a person voluntarily ingests an intoxicant and then voluntarily operates a vehicle, the requisite culpable mental state is impliеd or imputed.3 Courts eventually concluded that the legislature intended to dispense with the requirement of a culpable mental state in the offense of DWI.4 The legislature also passed section 49.11 of the penal code to relieve both the bench and bar of any confusion regarding the necessity of proving a culpable mental state in DWI prosecution.5
Traditionally, the defensе of involuntary intoxication applies to an affirmative defense of insanity (due to involuntary intoxi-
The lines between mens rea and actus reus have been blurred in the DWI context. Defendants, including Appellant, have argued that they are entitled to a jury instruction on the issue of involuntary intoxication. Courts have responded, as has the majority here, that involuntary intoxication is not a defense to a DWI offense.8 That response is not completely accurate.
It is true that a defendant is not entitled to an instruction that involuntary intoxication is a defense to DWI, and that is so for two reasons. First, “defense” is a term of art and exists only if enumerated in the penal code.9 Involuntary intoxication is not enumerated as a defense in the penal code.10 Second, as mentioned above, involuntary intoxication is an affirmative insanity defense,11 and therefore has no application to DWI, which does not require a culpable mental state.
DWI does require a voluntary act, however.12
Case law has attempted to reconcile the apparent cоnflict between the requirement of voluntariness and the absence of a culpable mental state for DWI. Some courts have concluded that automatism, not involuntary intoxication, is the proper defense to raise when the voluntariness of a DWI defendant‘s acts is at issue.15 The Austin Court of Appeals explained,
[Appellant] claims that his defense was automatism, a defense of an individual not engaging in a voluntary act. Apрellant points out that automatism as a defense involves, inter alia, being unconscious or semiconscious at the time of the acts constituting the offenses. Appellant argues that persons in such condition do not engage in a voluntary act.
““Automatism is defined as (1) action or conduct occurring without will, pur-
pose, or reasoned intention such as sleep walking, behavior carried out in a state of unconsciousness or mental dissociation without full awareness ... (2) The state of a person who, though capable of action is not conscious of his or her actions.“”
“Voluntariness” within the meaning of section 6.01(a) refers only to one‘s own physical body movements. Although “automatism” was not mentioned, the Texas Court of Criminal Appeals has stated in connection with the mеaning of “voluntariness“:
“If these physical movements are the nonvolitional result of someone‘s act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconscious, hypnosis or other nonvolitional impetus, that movement is not voluntary.”
The difficulty with appellant‘s argument is that he does not, even now, sufficiently point out what evidence supports his claim to the defense of automatism—that of being unconscious or semi-conscious at the time in question. The fact that appellant testified that he could not recall what had happened when he awakened in jail later that morning does not support his claim of automatism. “[I]t is not enough [to raise the defense of automatism] thаt the defendant suffers from amnesia and thus cannot remember the events in question.” The evidence demonstrates that appellant‘s acts were voluntary. Appellant admitted that his consumption of beer on the date in question was voluntary. His claim that he might have been drugged by Tom Tutor is not supported by the evidence and is mere speculation.16
There was no evidence to show that аppellant was unconscious or semi-conscious at the time of the commission of the offenses charged.
Moreover, an instruction on voluntariness under section 6.01(a) is necessary only if the accused admits committing the act or acts charged and seeks to absolve himself of criminal responsibility for engaging in the conduct. “When a person claims the involuntary act defense he is conceding that his own body made the motion but denies responsibility for it.” Here, appellant did not admit committing the offenses charged.
I also point out that another problem with determining whether a defendant has committed a voluntary act in the DWI context is the very broad definition of the term “operate“:
There is no statutory definition of the term “operate.” However, the Court of Criminal Aрpeals has held that, to find operation of a motor vehicle, “the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle‘s use.” In reaching its holding, the court repeated the reasoning enunciated in Barton:
We do not accept the contention that to operate a vеhicle within the meaning of the statute, the driver‘s personal effort must cause the automobile to either move or not move. Purposely causing or restraining actual movement is not the only definition of “operating” a motor vehicle. In other words, we examine the totality of the circumstances to determine if [the defendant] exerted personal effort upon his vehicle for its intended purpose.17
STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Georgina ALONSO, Appellee.
No. 08-07-00091-CV.
Court of Appeals of Texas, El Paso.
March 5, 2009.