COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00278-CR
KODY WILLIAM FARMER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON STATE’S PETITION FOR
DISCRETIONARY REVIEW
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After reviewing the State‘s petition for discretionary review, we withdraw
our February 17, 2011 opinion and judgment and substitute the following. See
Tex. R. App. P. 50.
I. Introduction
In one point, Appellant Kody William Farmer appeals his conviction for
driving while intoxicated (DWI). We reverse and remand for a new trial.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural History
This is the case of the mistaken pill.
Around 8:00 a.m. on April 19, 2008, Farmer rear-ended Randall Cox‘s
vehicle on Interstate 35. After both drivers moved to the shoulder and exited
their vehicles, Cox noted that Farmer had difficulty walking around his vehicle—
staggering and weaving—and he slurred his words, although Cox could not smell
any alcohol on him. Cox asked Farmer for his insurance information, and Farmer
gave him a business card. Cox returned to his vehicle and called 911 because
he did not think it was safe for anyone in Farmer‘s condition to be driving. While
Cox was on the phone, Farmer returned to his vehicle and drove away.
Cox followed Farmer, and when he reached the top of the exit ramp, he
saw Farmer‘s vehicle at the corner of the service road and an intersecting street;
it was impaled on a post. The vehicle‘s engine was running, the backup lights
were on, and the wheels were slowly turning in reverse. Although the door was
open, Farmer was still inside. The airbag had not deployed, there was no blood
or shattered glass, and Farmer did not appear injured, but he was not responding
to the OnStar service representative‘s inquiries.
Fort Worth Police Officer Timothy Lee, the first officer on the scene, stated
that he neither smelled alcohol nor suspected that Farmer had been drinking
before the accident. Rather, he believed that Farmer was intoxicated from
something other than alcohol because Farmer appeared sluggish and had
slurred speech, an unsteady walk, and difficulty keeping his eyes open. Officer
2
Lee testified that Farmer shook his hand, and when he let go, Farmer fell towards
him. The officer had to catch him to keep him from falling down, and he put
Farmer in his patrol vehicle because he feared Farmer might injure himself by
falling. Most of Farmer‘s answers to Officer Lee‘s questions were unclear, and
he had a difficult time understanding Farmer‘s speech. Farmer was very
cooperative and consented to a blood draw at the hospital. Inside Farmer‘s
vehicle, Officer Lee found a bag containing three prescription bottles: Tramadol
HCL, Zolpidem, and Carisoprodol. He also found several blister packs of
Benadryl, Amatrix, and Celebrex.
Detective D.M. Carabajal assisted Officer Lee with the DWI investigation.
Detective Carabajal testified that Farmer had slurred speech, slow movements,
and appeared ―out of it,‖ and that Farmer told Detective Carabajal that he had not
consumed alcohol. Detective Carabajal did not detect any odor of alcohol. He
suspected that Farmer was under the influence of a drug. In response to
questioning, Farmer initially indicated that he had taken some Benadryl but later
stated that he had taken some Soma and Ultram.2 Detective Carabajal
administered field sobriety tests to Farmer. Although Farmer only displayed two
of the possible six clues on the horizontal gaze nystagmus test, he had a hard
2
The charging instrument lists Zolpiden and Tramadol as the controlled
substances causing Farmer‘s impairment. Tramadol is the generic name for
Ultram, and Zolpidem is the generic name for Ambien.
3
time keeping his eyes open and keeping his balance during testing, and he failed
both the one-leg-stand and walk-and-turn tests.
At the hospital Farmer told Sandra Enriquez, the nurse who performed the
blood draw, that he was taking two prescription drugs, Soma and Ultram. The
blood test revealed that Farmer‘s blood contained 127 nanograms of Ultram per
milliliter of blood and 185 nanograms of Ambien per milliliter of blood. These
levels were within the range of what one would expect somebody to have if they
had taken the commonly prescribed amounts of these drugs within a few hours of
the time of the blood draw. Enriquez stated that at the time of the blood draw,
Farmer‘s pupils were very large, almost black and that Ambien can cause this
side effect. He also had slurred speech and could barely hold himself up in the
chair.
Ambien, which is taken for insomnia, is a prescription drug and a controlled
substance.3 Dr. Angela Springfield, chief toxicologist for the Tarrant County
Medical Examiner‘s Office, testified that someone who took Ambien would have
considerable difficulty going about his daily functions, would not be as aware of
his surroundings, might be confused, and might have difficulty driving because
the effects of Ambien and alcohol are similar in many respects. Ambien‘s
recommended dosage usually induces sleep within fifteen to thirty minutes.
3
The trial court took judicial notice that Ambien is a drug specifically listed
under Penalty Group 3 of the Controlled Substances Act.
4
Ultram is also a prescription drug and a dangerous drug; it is a synthetic
opiate that is prescribed for pain and that causes drowsiness, dizziness, and
sleepiness. Mixing Ultram with Ambien would increase the effects of drowsiness.
Ultram and Ambien are both white pills with the same shape, but one is slightly
larger than the other. Soma is also a white pill, but an Ambien pill is smaller than
a Soma pill.
Farmer testified that he had suffered from chronic back pain due to a work-
related injury and that he had taken different pain medications on and off for ten
years. He also testified that four days prior to the accident, he was prescribed
Soma to control muscle spasms and was given his first prescription for Ambien to
help him sleep.4 He had taken Ultram, on and off, for seven years. Farmer woke
up aching almost every morning and usually took Ultram. The labels on both
Soma and Ultram warn that they may cause drowsiness, and both his doctor and
his pharmacist recommended that he be within minutes of going to bed before
taking Ambien. Farmer does not like taking medication at all, so his wife sets the
pills out for him and tries to make sure that he takes them. She puts them on top
of the microwave, and he grabs them.
Farmer did not remember taking any medications the morning of the two
accidents, but he admitted that he obviously had. Usually, if he was commuting
from Aledo to Carrollton for work, he would take Ultram before getting in the
4
He had not taken any pills from the Celebrex or Amatrix packets that the
doctor also gave to him.
5
shower, and sometimes Soma. Farmer said that he took Ultram that morning
and ―I guess Soma. I thought—is what I thought I was taking.‖
The last thing Farmer remembered before the accident was stopping at the
gas station down the road from his house, about twenty miles from where the first
accident occurred. Based on the way he appeared in the video from Officer
Lee‘s vehicle, Farmer agreed that he did not have the normal use of his mental
or physical faculties. And based on the blood test results, he believed his
condition was caused by the Ambien. He stated that he did not intentionally take
Ambien that morning and that he had never taken it since.
Kimberly, Farmer‘s wife, testified that she was afraid Farmer would not
take his medication, and because the doctor had stressed how important it was
for him to take his pills, she laid them out on top of the microwave daily so she
would know that he took them. That morning, she laid out his pills on top of the
microwave, separating the Ultram from the Ambien. She did not remember
seeing him take the medication that morning, but she remembered it was gone
and was certain he had taken both pills because the Ambien she had laid out for
that night was gone.
At the close of testimony, the trial court noted that the issue of
voluntariness had been raised, but it denied Farmer‘s requested instruction on
the issue. The jury found Farmer guilty of DWI, and the trial court sentenced
Farmer to ninety days‘ confinement, suspended for one year, and a $200 fine,
and it placed him on community supervision for a year. This appeal followed.
6
III. Voluntary Act
In his sole point, Farmer argues that the trial court erred by denying his
request for a jury instruction on whether he committed a ―voluntary act.‖ He
requested the following instruction:
A person commits an offense only if he voluntarily engages in
conduct, including an act, or omission. Conduct is not rendered
involuntary merely because the person did not intend the results of
his conduct. Therefore, if you believe from the evidence beyond a
reasonable doubt that the defendant . . . did not have the normal use
of his mental or physical faculties by reason of the introduction of a
controlled substance to-wit: zolpidem, tramadol, or a combination of
two or more of these substances, but you further believe from the
evidence, or have a reasonable doubt thereof, that [he] . . . took
these drugs by accident, and it was not the voluntary act or conduct
of the defendant, you will acquit the defendant and say by your
verdict ―not guilty.‖
You are instructed that involuntary intoxication by prescription
medication, or medications, is a defense to prosecution for an
offense when it is shown that the accused has exercised no
independent judgment or volition in taking the intoxicant; and as a
result of his intoxication he did not know that his conduct was wrong
or was incapable of conforming his conduct to the requirements of
the law he allegedly violated. [Emphasis added.]
A. Standard of Review
Appellate 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); see also Sakil v.
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must
determine whether error occurred. If so, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at
731–32. When the evidence raises the issue of the conduct of the defendant not
7
being voluntary, the jury must be charged, when requested, on the issue of
voluntariness. Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997).
Failure to give the instruction is subject to a harm analysis. Payne v. State, 11
S.W.3d 231, 232–33 (Tex. Crim. App. 2000).
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. Tex.
Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor, 871 S.W.2d at 731–32;
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g);
see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (―A claim
of jury-charge error is reviewed using the procedure set out in Almanza.‖). In
other words, a properly preserved error will require reversal as long as the error
is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, ―the
actual degree of harm must be assayed in light of the entire jury charge, the state
of the evidence, including the contested issues and weight of probative evidence,
the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.‖ Id.; see also Ovalle v. State, 13 S.W.3d 774, 786
(Tex. Crim. App. 2000).
B. Involuntary Act
Farmer argues that he did not intentionally or voluntarily take the Ambien,
which he apparently consumed when he took the pills that his wife had set out for
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him.5 Therefore, he contends, an involuntary act is a defense in his case in that,
under the penal code, a person ―commits an offense only if he voluntarily
engages in conduct.‖ See Tex. Penal Code Ann. § 6.01(a) (Vernon 2003);
Brown v. State, 290 S.W.3d 247, 250–51 & n.1 (Tex. App.—Fort Worth 2009,
pet. ref‘d); Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet.
ref‘d); Nelson, 149 S.W.3d at 211–12.
The court of criminal appeals has described voluntary conduct as follows:
Voluntary conduct ―focuses upon conduct that is within the control of
the actor.[‖] . . . Thus, before criminal responsibility may be
imposed, the actor‘s conduct must ―include[ ] either a voluntary act
or an omission when the defendant was capable of action.‖ . . . [T]he
―voluntary act‖ requirement does not necessarily go to the ultimate
act (e.g., pulling the trigger), but only that criminal responsibility for
the harm must ―include an act‖ that is voluntary (e.g., pulling the gun,
pointing the gun, or cocking the hammer).
This Court has repeatedly discussed the meaning of
―accident‖ and ―voluntary conduct‖ to distinguish the two defensive
theories. . . .
‗[C]onduct [is not] rendered involuntary merely because an
accused does not intend the result of his conduct.‘ Therefore,
the issue of the voluntariness of one’s conduct . . . is separate
from the issue of one’s mental state.
...
―Voluntariness,‖ within the meaning of Section 6.01(a), refers only to
one‘s own physical body movements. If those physical movements
are the nonvolitional result of someone else’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 unconsciousness,
5
We note that taking prescription drugs is not a defense to DWI when the
accused voluntarily takes medication that has effects that are known to him. See
Nelson v. State, 149 S.W.3d 206, 211 (Tex. App.—Fort Worth 2004, no pet.).
9
hypnosis or some other nonvolitional impetus, that movement is not
voluntary. The word ―accident,‖ however, is a word of many
meanings which covers a wide spectrum of possibilities. It generally
means ―a happening that is not expected, foreseen, or intended.‖ . . .
[T]he word ―accident‖ has not been used to refer to an ―involuntary
act‖ under Section 6.01(a).
Rogers v. State, 105 S.W.3d 630, 638–39 (Tex. Crim. App. 2003) (internal
citations omitted) (emphasis added). To assert ―involuntary act‖ as a defense,
the defendant must produce ―evidence of an independent event, such as the
conduct of a third party, that could have precipitated the incident.‖ Rhodes v.
State, 997 S.W.2d 692, 694 (Tex. App.—Texarkana 1999, pet. ref‘d) (citing
Brown, 955 S.W.2d at 280).
We observe that with regard to the ―accident‖ language in Farmer‘s
requested instruction, ―a request for an instruction on ‗accident‘ is no request at
all . . . . [T]here is no longer any such defensive ‗accident‘ theory which requires
a jury instruction.‖ See Rogers, 105 S.W.3d at 640. Furthermore, involuntary
intoxication is not a defense to DWI. Brown, 290 S.W.3d at 250–51; Nelson, 149
S.W.3d at 211–12; Aliff v. State, 955 S.W.2d 892, 893 (Tex. App.—El Paso 1997,
no pet.). In Brown, another misdemeanor-DWI case, part of the defense‘s theory
was that he had mistakenly taken Ambien instead of his blood pressure
medicine. 290 S.W.3d at 248. We overruled his complaint about the trial court‘s
denial of his involuntary intoxication instruction request because DWI does not
have a culpable mental state. Id. at 250; see also Tex. Penal Code Ann.
10
§ 49.11(a) (Vernon 2003) (―[P]roof of a culpable mental state is not required for
conviction of an offense under this chapter.‖).
Because DWI has no required proof of a mental state necessary for a
conviction, it is a conduct-oriented offense. Nelson, 149 S.W.3d at 210. In other
words, ―I didn‘t mean to drive while intoxicated‖ cannot preclude a conviction
because the statute merely requires that the accused be found to be intoxicated
while operating a motor vehicle, without reference to any intent of his part to
become intoxicated. See Tex. Penal Code Ann. § 49.04 (Vernon 2003),
§ 49.11(a). On the other hand, if a third person causes the accused to become
intoxicated, such as by slipping a ―mickie‖ in his drink or forcing him to take an
intoxicant and get behind the wheel, then the voluntary conduct defense is
available. Cf. Brown, 290 S.W.3d at 248, 251 (holding no involuntary intoxication
when appellant took Ambien instead of his blood pressure medicine when the
Ambien pills were a different color and shape than his blood pressure medicine).
These possible third party actions do not touch on the accused‘s mental state or
intent, but rather on voluntariness. Cf. Nelson, 149 S.W.3d at 208–09, 211–12
(holding no jury instruction required when appellant knowingly and intentionally
took the three different prescription painkillers an hour before driving and knew
their side effects from past usage); Aliff, 955 S.W.2d at 892–93 (holding same
when nothing in the record indicated that appellant unknowingly took his
prescription drugs for his mental illness and back problems or that he took them
without knowledge of their effects).
11
The facts of this case do not squarely fit into one of the categories we have
discussed—accident, involuntary intoxication, or involuntary act. However, we
hold that it is most closely akin to an involuntary act because the evidence
suggests that although Farmer voluntarily took the pills laid out for him by his
wife, he involuntarily took the Ambien pill because of his wife‘s act. Therefore,
the trial court‘s denial of Farmer‘s request for an instruction about the
voluntariness of his actions constituted some harm, in that it denied the accused
of a defense that, if believed by the jury, could have resulted in his acquittal. See
Brown, 955 S.W.2d at 279; Abdnor, 871 S.W.2d at 731–32; Almanza, 686
S.W.2d at 171. We sustain Farmer‘s sole point.
V. Substance of the Requested Instruction
The State argues that the trial court did not err by denying Farmer‘s
requested instruction because the proposed instruction improperly commented
on the weight of the evidence. The State does not point us to anywhere in the
record to show where the substance of the proposed instruction was considered
and ruled on by the trial court. See Tex. R. App. P. 33.1(a). The record reflects
that although the trial court reflected that the proposed instruction was ―kind of a
comment‖ on the weight of the evidence, the State did not lodge this specific
objection and the parties did not argue the issue before the trial court. Because
the issue of the proposed instruction‘s content was not presented to, considered
by, or ruled on by the trial court and because on remand the parties will have an
opportunity to present and respond to arguments about, and the trial court will
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consider and expressly rule on, the substance of the jury instruction to be given,
we express no opinion as to the substance of Farmer‘s proposed instruction as
we find the issue unnecessary to resolve Farmer‘s sole issue—whether an
instruction was warranted—and we further conclude that the State‘s request puts
the issue of the instruction‘s substance prematurely before us.
VI. Conclusion
Having sustained Farmer‘s sole point, we reverse the trial court=s judgment
and remand this case for a new trial.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 28, 2011
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