OPINION
Jаmes Douglas Nelson appeals from his conviction for driving while intoxicated (DWI). In four issues, appellant complains that: (1) the trial court erred by denying appellant’s request for a special jury instruction on the defensive theory of medically-induced involuntary intoxication; (2) the trial court’s failure to give the special jury instruction on involuntary intoxication violated appellant’s constitutional rights to due process under the state and federal constitutions and due course of law under the federal constitution; (3) the trial court’s failure to give the special jury instruction on automatism was calculated to injure the rights of appellant and requires а reversal of the conviction because the trial court’s refusal denied appellant the right to a fair trial and contributed to his conviction; and (4) the trial court erred by entering a judgment sentencing appellant to five days’ confinement instead of seventy-two hours, and the judgment must be reformed. We affirm the judgment as reformed.
Facts
Aрpellant was diagnosed with degenerated and herniated discs in his back, and his doctor gave him prescriptions for three medications to manage his pain. 1 Appellant refilled the prescriptions at a local pharmacy on August 5, 2002. Approximately eleven days later on August 16, 2002, appellant woke up at around 5:00 a.m. with muscle spasms and a numb feeling in his arm and took a two-milligram dose of Alprazolam, a muscle relaxant (generic Xanax), a thirty-five-milligram dose of Soma (a muscle relaxant), and a ten-milligram dose of Hydrocodone (generic Lortab), a narcotic. 2 Appellant also ate a sausage biscuit and drank a “protein shаke” and coffee with his medication. The evening before, appellant also took a generic Darvocet for pain relief. Appellant left for work at 6:15 a.m. and arrived at work at 7:00 a.m. But, thirty-five minutes after being at work appellant still felt numbness and pain in his leg and arm, so he decided to drive home. While driving home, the Arlington police stopped appellant for driving erratically. The police *209 arrested appellant for DWI around 8:30 a.m.
At trial, appellant admitted to taking four types of prescription drugs during the morning of and the evening before the stop. He also admitted that this was not the first time that he had taken the drugs and that he knew their effects. Appellant conceded that the police videotape of him driving showed that he was weaving, but contended that he was weaving because he dropped the cigarette lighter and was looking for it. Ultimately, appellant admitted at trial that he had been intoxicated while driving his car. Police test results of appellant’s urine sample were positivе for the presence of the drugs Hydrocodone, Alprozolam, Propoxyphene, Carisoprodal, and Meprobamate. Prior to trial, appellant filed several pleadings raising claims of medically-induced automatism and involuntary intoxication. Appellant requested a special jury instruction on automatism and theories of involuntary intoxication. The trial court denied his request and overruled his objections relating to the request. The jury convicted appellant of the offense of DWI and assessed punishment.
Jury Instructions
In his first three issues, appellant complains that the trial court erred by denying appellant’s requests for special jury instructions оn automatism and medically-induced involuntary intoxication. Appellant argues that the trial court’s denial of his request to give the instructions violated his constitutional rights to due process under the state and federal constitutions and due course of law under the federal constitution and was calculated to injure appellant’s right to a fair trial. The State responds, arguing that appellant’s complaints on the special instruction were waived because appellant failed to argue how his requested instruction on involuntary intoxication was raised by the evidence. Alternatively, the State argues that there was no evidence that would requirе the trial court to charge the jury on involuntary intoxication. The State also contends that appellant’s constitutional complaints were waived because appellant never presented those claims to the trial court for a ruling.
Standard of Review
Appellate review of error in a jury charge involves a two-step рrocess.
Abdnor v. State,
Discussion
A review of the record reveals that appellant did not waive his complaints as
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the State contends.
See
Tex.R.App. P. 33.1(a)(1);
Mosley v. State,
Under Texas law, a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. PeNál Codе Ann. § 49.04(a) (Vernon 2003). Intoxicated means “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” Id. § 49.01(2).
Appellant requested a voluntariness jury instruction that read “[a] person commits an offense only if he voluntarily engages in conduct, including ... a bodily movement, whether voluntary or involuntary.” Other requested instructions equated a “voluntary act” to mean a “conscious act.” Appellant also requested an instruction on involuntarily intoxication, which instructed the jury that a person could not be “voluntarily intoxicated” when the person takes prescription medication according to the prescription and has no knowledge of the medication’s intoxicating effects. The trial court denied both of the requested instructions.
Involuntary Intoxication
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 conduct was wrong or was incapable of conforming his conduct to the requirement of the law he allegedly violated.
Torres v. State,
We note that appellаnt had been prescribed the medications previously and that the day of the incident was not the first time that appellant volitionally took the same doses of the drugs together at one time. Thus, there was no evidence in the record before us that would raise an issue on the first element of this defense under
Torres;
nothing indicated that аppellant took the intoxicating drugs unknowingly or without knowledge of their effect. In fact, appellant admitted that he started taking the same drugs in 1998 or
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1999 and testified that he was familiar with their effect. The voluntary taking of prescription drugs, which impair mental or physical faculties, is not a defense to DWI. Tex. Penal Code Ann. § 49.10 (Vernon Supp.2004-05);
Aliff,
Additionally, although involuntary intoxication is a defense to criminal culpability, proof of a culpable mental state is not required in prosecutions for intoxication offenses, including DWI.
Torres,
Automatism
Automatism is the defense of unconsciousness and is a “defense related to but different from the defense of insanity.”
Mendenhall,
As we noted above, prosecutions under the DWI statute do not require proof of a culpable mental state.
See
Tex. Penal Code Ann. § 49.11. However, the focus of any insanity defense is upon the mental state of the accused at the time of the offense.
See id.
§ 8.01. Because proof of a culpable mental state is not required to convict a defendant of driving while intoxicated, the insanity defense cannot be a defense to such a charge.
See Beasley v. State,
Although automatism is sometimes explained in terms of lack of the requisite mental state for commission of the crime, more recently the court of criminal appeals noted that the better rationale was to сonsider the defense in terms of the individual not engaging in a “voluntary act.”
Mendenhall,
Involuntary conduct is a defense to prosecution. See Tex. Penal Code ANN. § 6.01. However, in Texas a claim of involuntary conduct is not available when the defеndant voluntarily took the intoxicant. Id. § 8.04(a); see also Torres, 585 S.W.2d at 749 (holding that the defendant must have exercised no independent judgment in taking the intoxicant).
Nothing in the record indicates that appellant was acting involuntarily when he got into his car and drove home from work. In fact, appellant testified that he made the decision to drive home from work because he was in pain. He recalled making the trip home, dropping the lighter in his car while driving, and being pulled over by the police. We see no evidence in the record to indicate that appellant was unconscious or acting involuntarily when he decided to get into his car and drive home from work.
To the extent that appellant is arguing that he was involuntarily intoxicated, we noted above that nothing in the record indicated that appellant took the drugs involuntarily. He admitted to taking the drugs volitionally to deal with his symptoms. He admitted to having taken the same drugs in the same combination starting in 1998 or 1999 and stated that he knew their effect. The fact that аppellant took the prescription drugs voluntarily, knowing their effect, bars his claim of involuntary conduct.
See
Tex. PeNal Code ANN. § 8.04(a);
see also Torres,
Judgment
In his fourth issue, appellant complains that the trial court erred by entering a judgment sentencing appellant to five days’ confinement instead of seventy-two hours’ confinement and the judgment must be reformed.
After deliberating on appellant’s sentence for less than an hour, the jury sent out a note asking the trial court whether they were required to assign appellant jail time or whether they could choose only a fine. The judge instructed the jury on the range of punishment. ■ The jury returned a sentence of zero days’ confinement and a non-probated fine of $300. The trial court instructed the jury that the minimum range of punishment for the offense was seventy-two hours’ confinement and sent the jury back to deliberate. This time, the jury assessed appellant’s punishment at seventy-two hours’ confinement, probated, and/or a $300 fine. The trial court entered a judgment sentencing appellant to five days’ confinement and a $300 fine, both probated for twelve months.
Appellant specifically complаins that he timely and validly elected to have the jury assess punishment. The jury did so, sentenced appellant to seventy-two hours’ confinement, and recommended that the terms of appellant’s confinement be probated. Appellant argues that the trial court was without authority to sentence appellant to five-dаys’ confinement, whether probated or not.
Article 42.01 of the code of criminal procedure declares that the judgment should reflect that the defendant be punished in accordance with the jury’s verdict. Tex.Code Crim. PROC. Ann. art. 42.01, § 1(8) (Vernon Supp.2004-05). Further, where the trial court’s judgment differs
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from the jury’s verdict, the judgment should be reformed to reflect thе jury’s verdict.
Chudleigh v. State,
An appellate court may correct and reform a trial court judgment to make the judgment congruent with the record.
St. Julian v. State,
Conclusion
Having overruled appellant’s first, second, and third issues and having sustained appellant’s fourth issue, we affirm the trial court’s judgment as reformed to reflect the jury’s verdict.
Notes
. Appellant was diаgnosed with this condition and was first prescribed medication in late 1998 or early 1999.
. Appellant's doctor did not advise him that taking the medications would impair his mental or physical faculties, nor did the pharmacy include any labels with or on the prescription bottles warning that the medicines would impair his mental or physical faculties.