Appeal is taken from a conviction for robbery. Punishment was assessed by the jury at two years.
The indictment alleged that the offense occurred on or about February 2, 1975, and the record reflects that trial was in July, 1975.
Barbara Gibson identified appellant as the man who entered the Colonial Food Store on Grape Street in Abilene shortly before midnight on February 2, 1975, and announced, "This is sort of like a hold up." Appellant approached Gibson's fiance who was waiting for her to close the store and said, "You move or say a word and I will blow your head off." Gibson did not see a gun but stated that appellant "had both hands in his pockets, and this one, you know, you could tell something was pointed out." At appellant's request, Gibson removed what was later determined to be "around a hundred" dollars from a cash register, placed it in a paper bag, and gave same to appellant.
Appellant in his sole ground of error contends that the court erred in refusing to grant his requested charge at the punishment stage of the trial that intoxication may be considered to mitigate punishment (appellant made a motion for probation) if, as a result of the intoxication, "the defendant either did not know his conduct was wrong, or was incapable of conforming his conduct to the requirements of the law he allegedly violated."
Appellant urges that under the evidence he was entitled to have the jury instructed in accordance with V.T.C.A. Penal Code, Sections 8.04 and 8.01.
Section 8.04, supra, "Intoxication," provides:
Section 8.01, supra, "Insanity," provides:
The testimony of Bob Borst, who had assisted appellant in moving on the day in question, was to the effect that appellant had drunk a substantial quantity of beer throughout the day and that Borst had visited a number of clubs that evening with appellant where appellant's drinking continued. Prior to appellant carrying Borst home "after ten or ten thirty," appellant drank a mixture of "whiskey and cokes." About twelve o'clock the same night appellant returned to Borst's house at which time Borst described appellant as being "pretty pickalated."
Appellant directs our attention to the following, which occurred on cross-examination of Borst by appellant.
On re-direct, Borst was asked to state what he meant when he testified that appellant didn't know what he was doing when he was drinking. The record reflects that Borst testified that appellant would not remember what he had told him over five minutes, "he will be driving on the wrong side of the road and won't pay no attention," and "he is just likely to do anything."
Appellant further directs our attention to the testimony of appellant that he remembers entering the store where the robbery occurred but that he did not recall doing the things he was accused of doing on the occasion in question.
Appellant relies on Rodriguez v. State, Tex.Cr.App., 513 S.W.2d 594, and Perez v. State, 146 Tex.Cr. R. 241, 172 S.W.2d 314. Appellant recognizes that these cases arose under the former code, Art. 36, V.A.P.C.
In Rodriguez, it appeared to be undisputed that defendant was intoxicated; however, the evidence was found insufficient to warrant a charge under Art. 36, supra. In Rodriguez, this Court noted that Perez v. State, supra, accurately described the evidence
Under the former code, a defendant must have been intoxicated to the point of losing his ability to distinguish between right and wrong in order to avail himself of the mitigation of penalty provision of Art. 36, supra. See Art. 35, V.A.P.C.; Rodriguez v. State, supra.
Reading Sections 8.04 and 8.01, supra, of the present code together, a defendant, to avail himself of the mitigation provision of Section 8.04, supra, must, as the result of intoxication, (1) "not know his conduct was wrong" or (2) "was incapable of conforming his conduct to the requirements of the law he violated."
First it should be noted that it appears undisputed that appellant in the instant case was intoxicated as was the case in Rodriguez and Perez. Section 8.04, supra, like former code Art. 36, V.A.P.C., provides that "voluntary intoxication does not constitute a defense to the commission of crime."
While Rodriguez and Perez are no longer controlling,
We find the foregoing quotation to be no less applicable under the new code.
We conclude that the evidence does not raise the issue of temporary insanity caused by intoxication and reject appellant's contention that the court erred in failing to grant his requested charge.
The judgment is affirmed.
Opinion approved by the Court.