Taylor v. State
885 S.W.2d 154
Tex. Crim. App.
1994
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*1 TAYLOR, Appellant, Valerie Susan Texas, Appellee.

The STATE of

No. 816-93. Texas,

Court of Criminal

En Banc.

Oct. Holder, Tipton appointed on

Terri appellant. appeal, Angleton, for Cudd, Mary Mapel, Atty., Peter Dist. Jim Robert Hut- Atty., Angleton, and Asst. Dist. Austin, tash, Atty., for the State. State’s PETITION APPELLANT’S OPINION ON REVIEW DISCRETIONARY FOR MALONEY, Judge. murder and indicted for

Appellant was juryA pled guilty reason impris- life and assessed convicted Appeals af- onment. The First Court Taylor v. 856 S.W.2d firmed. 1993). We (Tex.App. [1st Dist.] —Houston discretionary petition for granted appellant’s the Court review to determine that an Appeals erred *2 properly given guilt/in- instruction [ was at the there was evidence “which have ] stage jury appellant nocence of trial.1 lead” the to believe that was offense, intoxicated at the time of the and Appeals’ opinion The Court of sets forth in “might that such intoxication have contrib- leading detail the facts to the instant offense insanity. uted” to claimed testimony and the at trial. Id. at 462-67. Therefore, the trial court not err Briefly, appellant four-year killed her old instructing on intoxication. act, daughter, committing confessed (following Jaynes Id. at 472 pled guilty by but reason of At (Tex.Crim.App.1984) and trial, appellant evidence was admitted that (Tex.Crim. Williams v. 567 S.W.2d 507 paranoid schizophrenia suffered from and App.1978)). psychotic had exhibited behavior Appellant argues weeks before the offense. There was evi- that the ob- jected cig- improperly given dence that shared marihuana was because she arette with her “tempo- common-law asserted a husband defense night offense,2 rary insanity” and the use of her use of marihua- na, trigger psychotic marihuana episode. could and that the evidence was insufficient to although The State maintained that show that she was “intoxicated.” The State undoubtedly disturbed, mentally was adequately sup- she contends the instruction was right wrong ported by knew the difference between the evidence.

at the time of the Alternatively, offense. I. argued

State that if did not know right wrong at the time of the At one time Texas courts considered evi it was because of her use of marihuana. dence of intoxication as relevant to the defendant’s state of at mind the time of the The trial court instructed the at generally offense. See Evers v. guilt/innocence on the affirmative defense of (App. Tex.Crim. 746-47 S.W. insanity. The court also instructed the 1892) (discussing history of caselaw on issue as follows: committing of intoxication as excuse to Voluntary intoxication does not consti- crime). theory tute a defense to the commission of a ought ... that drunkenness to be admitted crime. excuse, justify, not to or miti- purpose For the of this section “intoxi- crime, gate simply light to throw cation” means disturbance of mental or offender’, upon the mental status of the physical capacity resulting from the intro- enable the to find out what crime had body. duction of substance into the committed; rather, by proving been Appellant objected to the instruction on in- necessary absence of the constituents of toxication “in that it does not come under the (such malice, premeditation, crime guidelines of Section 8.04 of the Penal Code. intent, etc.,) to show that no crime was raising any And we are not defensive issues committed. go particular that would to that instruction.” (emphasis original). Id. 20 at 746 S.W. Appeals upheld Reportedly, following The Court of the instruc- a trial in which a de- tion, concluding that fendant who committed murder “without Specifically, granted following charge supported by review of the Court that the must be (1) grounds: two The First Court of evidence. erred in that the intoxication properly given guilt stage at the of trial when Appellant testified she "took two hits off not a defense and when cigarette put and then out of” marihuana it appellant did not claim that intoxication excused did not want to since her common-law husband in direct conflict with its earlier share it and she did not wish to smoke it alone. issue; (2) ruling Ap- on that The Court of Appellant’s common-law husband peals using erred in standard to cigarette appellant had "a he smoked the determine if the evidence of intoxication was little bit” of it. guilt stage sufficient to submit a opposed trial as to the standard set out

provocation” acquitted ground “on the of section 8.04 is directed to drunkenness,” guilt/innocence phase (per of trial use of “defense”),4 essentially providing Legislature enacted Penal Code article word (dis- intoxication will not excuse a predecessor to section 8.04.3 Id. pun- is a cussing, citing, but not the celebrated case defendant’s actions. Subsection *3 36). provision, specifically providing that gave rise to enactment of article ishment which may tem- a defendant introduce evidence of in principles The set forth article 36 re insanity by intoxication for porary 8.04, in main embodied section which was mitigating punishment. of purposes part of the Penal Code. See codified as 1974 (Tex. State, 33, 2 Ramos v. 547 34 n. S.W.2d (c) “charge” provision, is (section Crim.App.1977) “quite clearly” a 8.04 in designating circumstances 36). 8.04, reeodification of article Section interpret given. must be sub Intoxication, states: (c) only setting forth certain cir section as (a) Voluntary intoxication does not consti- give in court must cumstances which a trial tute a defense to the commission of crime. (c) pre an instruction. Subsection does not (b) temporary insanity caused Evidence of if giving of an instruction circum clude by by may introduced be stances, in different than those outlined sub mitigation penalty in actor of the attached (c), raise an issue under section otherwise being to the offense for which he is tried. (a) (b). or This view is either subsection is relied arti application of former consistent with upon as a defense and the evidence tends (c), to subsection article 36 cle 36. Similar insanity by to show that such was caused insanity provided temporary is that “where intoxication, the court shall upon a defense and the evidence relied as provisions in accordance with the of this insanity brought to that such tends show section. intoxicating by of about the immoderate use (d) required “charge liquors” “intoxi- the court was to purposes For of this section provisions of in accordance with the cation” means disturbance of mental or 3, supra. 1 was resulting section 1.” fn. Section physical capacity from the intro- See (a) body. equivalent of any into the the substantive subsections duction of substance enacted, "mitigation” provi- primarily provided part: of section 8.04 as 3. As article 36 in (b) misguided. certainly While subsection sion is Section 1. ... That neither mitigation provision, not. subsection mind, produced by nor passed article 36 was in Evers made clear that spirits, recent use of ardent shall relying part prevent intox- to defendants from on any for the com- constitute excuse in State responsibility. for criminal ication as an excuse crime, mission of nor miti- shall intoxication then, part Undoubtedly, it was directed in crime, gate penalty either the or the guilt: pertaining issues to the defendant’s insanity temporary but evidence of clearly purposes may By two spirits its terms there were such use of ardent be intro- First, any prose- mere intoxication intended: to eliminate duced the defendant in criminal prosecution any any mitigation penalty as in criminal attached to defense cution in whatever, regardless constituent ele- being which he is tried.... the offense for crime; second, prevent tempo- duty to ments of the rary insanity crime, 2. It shall be the [sic] Sec. State, any county judges from a defense to [sic] of this several district permitting introduced ... prosecution pending it to be before in them, criminal mitigate prosecutions or lessen to temporary is relied all criminal where penalty. object statute was to The to show as a defense and the tends prevent parties pleading their own brought about that such voluntarily un- wrong, placing themselves intoxicating liquors, after immoderate use of drink, becoming a provi- der the influence in accordance with community, to other or a menace terror to section 1 of this act. sions of 1881, 14, 17, underlying principle February Leg., citizens.... 17th ch. Act of writ- that laid down common-law statute is ers, wit, Tex.Gen.Laws man, voluntarily who sane no puts a condition as to have Appeals state himself in such Both and the Court of be held to only control over his will or must section 8.04 is that an instruction under consequences springing therefrom. although intend the punishment, an instruction at proper at Evers, 20 S.W. at 746. guilt/innocence error. This view is not reversible (b) Nevertheless, upheld tended to set forth exclusive circumstances combined. 1, given, should instructions on Section even when there which an instruction legislature explicitly was no evidence of or could have stated that pro may given evidence that an instruction not be under sub See, except provided by e.g., duced intoxication. sections Valdez (c). 24, (Tex.Crim.App. subsection S.W.2d 1970); Kincheloe v. 146 Tex.Crim. may Failing recognize that issue (App.1943); Ramos v. S.W.2d (a) by circumstances raised subsection 126,147 141 Tex.Crim. (c), other than those set forth Kincheloe, (App.1941). the defendant’s appellant’s argument primarily turns complaint was similar to com the circumstances set forth in sub- plaint in the instant case—the defendant *4 (c) Having that section have been met. held complained given that the instruction under (e) controlling not an subsection prejudicial 1 Section was since there was no (a), required instruction is under subsection insanity produced evidence of only portions appel- those will address intoxication. We said: argument lant’s that are relevant to subsec- The record does reflect (a).5 tion killing at intoxicated the time of the produced temporary not to a that it II. insanity. Consequently, an instruction on Appellant argues that the was not temporary insanity from the use of ardent sufficient to raise an issue that she was intox spirits required, not but the instruc- icated, court, relying upon one case from this tion of the court that intoxication (Tex.Crim. State, Nethery v. 692 686 S.W.2d spirits use of ardent cert, 1110, App.1985), denied 474 106 U.S. any not excuse for the commission (1986). 897, 5.Ct. 88 L.Ed.2d 931 In Neth ... improper. offense was not ery, a witness defendant Kincheloe, 175 S.W.2d at 596. had 3 “kamikaze” drinks and a mari smoked Moreover, cigarette presence, huana in her but that he it is well settled that a trial appli appear court must instruct the did not act or The de law intoxicated. See, gave cable to thé e.g., upon case. fendant a written statement Tex.Code Crim. (jury Proc.Ann. art. 36.14 of trial arrest which he stated that he “remem judge “distinctly beer, vodka,” shall drinking whiskey, set[] forth the law bered and case”); applicable smoking “being Jackson v. marihuana and naked and (Tex.Crim.App.1982); running S.W.2d Rider into water.” at 711-12. A some Id. v. (Tex.Crim.App. police 567 S.W.2d officer testified that of three shots 1978); Dominguez defendant, 141 Tex.Crim. made one was a hit and (App.1941). managed physical Both sub that the defendant maneu (a) (b) “fairly sections set forth rales of law vers that were difficult to do when one implicated by could be circumstances other is sober.” [the We concluded that “even (c); statement, than those set forth in subsection if an defendant’s] while it reflects that only given can drinking, instruction under subsec [the defendant] was does not neces (c) circumstances, applicable sarily tion law to the show intoxication” so as to entitle him conceivably kept jury. case could from the to an instruction on We do not believe this is what intoxication.6 Id. at 712. In other words, legislature intended. Were subsection in while there was evidence that argues Appellant Nethery that since she relied 6. We note that the instruction at issue in given punish- "temporary was ment, subsection instruction rather than insan- requiring use, just some not of intoxi- ity” brought about her marihuana cation, tempo- but that the intoxication caused subsection instruction should not have been However, rary insanity. the court did not ex- inquiry might given. While such be relevant pressly temporary insanity, reach the issue of (c), implicated it not under subsection necessarily that the evidence did "not (a). show intoxication” so as to entitle the defendant intoxicants, Nethery defendant in consumed evidence of “intoxication” sufficient to raise (a). enough there evidence of the effect an issue under subsection of those intoxicants on the defendant’s men Appellant argues also that the de physical tal capacity require so as to rely fendant must On her intoxication in an instruction. effort to excuse her actions before an instruc case, Appellant tion

In the is called for. reasons that Ap instant the Court of way peals since she in no claimed that her mari upheld the subsection huana use or otherwise based evidence that smoked excused her the instruction should marihuana within a few hours of the given. disagree. not have been Subsec and that it caused her to feel and act differ (a) simply provides tion that intoxication is ently temper.7 and to lose control of her not a defense. doWe not believe that a While the amount of marihuana smoked was rely upon defendant needs to intoxication as substantial, there was some evidence that implicate provision. a defense in order to it in a resulted “disturbance” of Rather, if there is evidence from source thoughts Appellant and actions.8 testified lead a to conclude that the that as soon as she smoked the marihuana defendant’s intoxication excused his somehow feeling funny,” began she “started “laughing actions, an appropriate. instruction is time,” crying at the same felt a “sudden *5 case, instant where defendant was assert anger” daughter flash of toward her and told ing a defense of in excuse of her going her that she was to kill her. In addi but there was also albeit tion, expert an testified that marihuana use slight, pre that her actions could have been schizophrenic trigger psychotic could use, cipitated by her marihuana the Court of episode opinion appellant’s and that in his Appeals in holding did not err that the in usage night marihuana on the of the offense properly given.9 struction was “markedly” affected her control over her temper. Appeals hold the Having Appeals Court of held the Court of did not in concluding upholding not err that there in was some err the subsection instruc- night "markedly” "to a on caused of the offense affected her Nethery, intoxication." S.W.2d at temper. control over her He concluded that appellant's her use of marihuana loosened con- ultimately temper, trol on her resulted 7.Specifically, the Court of relied appellant killing daughter. in her following support holding: evidence in of its psy- In similar statements made to her own The evidence at trial indicated that chological expert describing evening past had used marihuana in the recent offense, appellant that "I related smoked Further, differently. that it caused her to act joint laughing crying at the and started the evidence showed that had stop." time same and couldn’t asked smoked marihuana within a few hours of kill- any- whether she felt that the marihuana had ing [Appellant’s her child. common-law hus- child, thing killing to do with her her shortly killing her band] before responded as follows: child, appellant "babbling go- was on” about No, during my I’ve smoked marihuana a lot ing to the “other side of the moon” and gotten And made after smok- [sic] life. I’ve one," the "chosen and that he attributed her ing. maybe slap And the I’d worse do is irrational behavior to her marihuana use on Raymond something that. But kill- like evening describing of the offense. In ing, punching a lot than that is different immediately leading up events to the death of somebody. child, appellant psy- her related to the State's Taylor, 856 S.W.2d at 471-72. following: expert chiatric joint way I smoked home. Started (d) defines "intoxi- of section 8.04 feeling funny got after that. Before I even physical cation” as “disturbance of mental or home, vacant lot that me. there's this scared capacity resulting of introduction place, my I Before drove told body.” substance into the daughter going that I It to kill her. was anger like a sudden flash of towards her. opinion Jaynes, upon by 9. Our relied the Court There was no reason. Appeals, holding. this of is consistent with psychiatric expert The State's further testi- There, Jaynes, the defendant killing daughter 6Ti S.W.2d fied that act of appellant losing testified that she had no recollection of the events was the result of control of her ' day temper, ana that her of marihuana on the Others who saw the use on of offense. tion, it, § as a limi- judgment she contends that acts we affirm the of the Court 8.04(a) tation, §a instruction to Appeals. permitting given only meets his when the defendant CAMPBELL, J., participating. affirmative production to show the burden insanity and there is also evidence CLINTON, Judge, concurring. that his from which the could conclude opinion, majority IAs understand its by voluntary intoxi- essentially holds that an instruction on volun- cation. tary guilt intoxication at the or innocence contention, rejects and I majority phase of trial is not limited to cases which majority correctly In essence the think so. as a de- relied voluntary in- intoxication holds while fense, appropriate any but is time the evi- the circum- struction is mandated under dence raises an issue whether an accused 8.04, § in subsection stances described at the time intoxicated offense an is not the submission of such may that it have been a causal Indeed, circumstances. to those confined factor, evidence raises issue 36.14, V.A.C.C.P., requires Article the trial voluntary. whether his intoxication was I every “distinctly” on agree. aspect applicable “the law to the case[.]” Code, 8.04(a), § Under V.T.C.APenal vol- means, That consistent with subsection untary intoxication a defense to crime. 8.04, § raises an that whenever 8.04(b), however, if Under voluntarily the accused issue whether temporary insanity, causes a state of and an intoxicated at the time he committed the state, offense is committed while such an instruction to the excuse his intoxication does not although not an excuse for commission irrespective of appropriate, conduct would crime, may be considered the factfinder in *6 suggests whether the evidence his level mitigation punishment. Now we come to to intoxication was such as have (e) 8.04, supra. provi- § This short, state sion reads: § meant to limit the affirmative “(c) is relied and it does so on its face. upon as a defense and the evidence tends It was not also meant to limit the State’s to show that such was caused pursuant entitlement to an instruction jury the court shall 8.04(a) intoxication-less-than-insanity § that provisions accordance with the of this is not an excuse to crime. section.” join amplification, I With this brief Appellant contends it was error for the trial majority opinion. 8.04(a), jury court to instruct voluntary defense, intoxication trial, guilt phase at the she because rely upon temporary insanity as a de- stage

fense at that of trial. IAs understand ap- defendant after offense testified that she was intoxicated at the time of the of- peared high diagnosed might and a contributed to doctor her as suf- fense and this have her offense,” fering drug knowledge pumped overdose and defense of lack of properly given. stomach. Id. at 199-200. The court instructed Id. at 202. instruction was guilt/innocence voluntary that the that neither Where there was considerable evidence asserted a intoxication nor defendant was intoxicated she defense, knowledge proper- intoxication would constitute a defense. The de- lack of trial ly voluntary intoxication is no fendant claimed instruction was comment instructed weight find of evidence and limited her de- We noted that "the was free to defense. knowledge asserting the accident because she was not that her lack had no fense long they knowledge voluntary did not attribute that lack of was due to as as here, knowledge Likewise intoxication. intoxication." voluntary was insane as Id. at 201. We held that since intoxi- was free to find defense, long they came did not attribute her cation is not “when evidence have led the to believe that intoxication.