TAYLOR v. STATE

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was indicted for murder and pled not guilty by reason of insanity. A jury convicted appellant and assessed life imprisonment. The First Court of Appeals affirmed. Taylor v. State, 856 S.W.2d 459 (Tex.App.—Houston [1st Dist.] 1993). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in holding that an intoxication instruction was properly given at the guilt/innocence stage of trial.1

The Court of Appeals' opinion sets forth in detail the facts leading to the instant offense and the testimony at trial. Id. at 462-67. Briefly, appellant killed her four-year old daughter, confessed to committing the act, but pled not guilty by reason of insanity. At trial, evidence was admitted that appellant suffered from paranoid schizophrenia and had exhibited psychotic behavior in the weeks before the offense. There was evidence that appellant shared a marihuana cigarette with her common-law husband the night of the offense,2 and that the use of marihuana could trigger a psychotic episode. The State maintained that although appellant was undoubtedly mentally disturbed, she knew the difference between right and wrong at the time of the offense. Alternatively, the State argued that if appellant did not know right from wrong at the time of the offense, it was because of her use of marihuana.

The trial court instructed the jury at guilt/innocence on the affirmative defense of insanity. The court also instructed the jury as follows:

Appellant objected to the instruction on intoxication "in that it does not come under the guidelines of Section 8.04 of the Penal Code. And we are not raising any defensive issues that would go to that particular instruction."

The Court of Appeals upheld the instruction, concluding that

Id. at 472 (following Jaynes v. State, 673 S.W.2d 198 (Tex.Crim.App.1984) and Williams v. State, 567 S.W.2d 507 (Tex.Crim. App.1978)).

Appellant argues that the instruction objected to was improperly given because she asserted a defense of insanity, not "temporary insanity" caused by her use of marihuana, and that the evidence was insufficient to show that she was "intoxicated." The State contends the instruction was adequately supported by the evidence.

I.

At one time Texas courts considered evidence of intoxication as being relevant to the defendant's state of mind at the time of the offense. See generally Evers v. State, 31 Tex.Crim. 318, 20 S.W. 744, 746-47 (App. 1892) (discussing history of caselaw on issue of intoxication as excuse to committing crime). The theory was

Id. 20 S.W. at 746 (emphasis in original). Reportedly, following a trial in which a defendant who committed murder "without provocation" was acquitted "on the ground of temporary insanity caused by drunkenness," the Legislature enacted Penal Code article 36, the predecessor to section 8.04.3 Id. (discussing, but not citing, the celebrated case which gave rise to enactment of article 36).

The principles set forth in article 36 remain embodied in section 8.04, which was codified as part of the 1974 Penal Code. See Ramos v. State, 547 S.W.2d 33, 34 n. 2 (Tex. Crim.App.1977) (section 8.04 "quite clearly" a recodification of article 36). Section 8.04, Intoxication, states:

Subsection (a) of section 8.04 is directed to the guilt/innocence phase of trial (per use of the word "defense"),4 essentially providing that voluntary intoxication will not excuse a defendant's actions. Subsection (b) is a punishment provision, specifically providing that a defendant may introduce evidence of temporary insanity caused by intoxication for purposes of mitigating his punishment.

Subsection (c) is a "charge" provision, designating circumstances in which a jury instruction must be given. We interpret subsection (c) as setting forth only certain circumstances in which a trial court must give an instruction. Subsection (c) does not preclude the giving of an instruction if circumstances, different than those outlined in subsection (c), otherwise raise an issue under either subsection (a) or (b). This view is consistent with the application of former article 36. Similar to subsection (c), article 36 provided that "where temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquors" the court was required to "charge the jury in accordance with the provisions of section 1." See fn. 3, supra. Section 1 was the substantive equivalent of subsections (a) and (b) combined. Nevertheless, we upheld instructions on Section 1, even when there was no evidence of temporary insanity, or evidence that temporary insanity was produced by intoxication. See, e.g., Valdez v. State, 462 S.W.2d 24, 27 (Tex.Crim.App. 1970); Kincheloe v. State, 146 Tex.Crim. 414, 175 S.W.2d 593, 596 (App.1943); Ramos v. State, 141 Tex.Crim. 126, 147 S.W.2d 809, 811 (App.1941). In Kincheloe, the defendant's complaint was similar to appellant's complaint in the instant case—the defendant complained that the instruction given under Section 1 was prejudicial since there was no evidence of temporary insanity produced by intoxication. We said:

Kincheloe, 175 S.W.2d at 596.

Moreover, it is well settled that a trial court must instruct the jury on the law applicable to the case. See, e.g., Tex.Code Crim. Proc.Ann. art. 36.14 (jury charge of trial judge shall "distinctly set[] forth the law applicable to the case"); Jackson v. State, 633 S.W.2d 897 (Tex.Crim.App.1982); Rider v. State, 567 S.W.2d 192, 195 (Tex.Crim.App. 1978); Dominguez v. State, 141 Tex.Crim. 67, 147 S.W.2d 480, 482 (App.1941). Both subsections (a) and (b) set forth rules of law that could be implicated by circumstances other than those set forth in subsection (c); if an instruction can only be given under subsection (c) circumstances, law applicable to the case could conceivably be kept from the jury. We do not believe that this is what the legislature intended. Were subsection (c) intended to set forth exclusive circumstances in which an instruction should be given, the legislature could have explicitly stated that an instruction may not be given under subsections (a) or (b) except as provided by subsection (c).

Failing to recognize that an issue may be raised under subsection (a) by circumstances other than those set forth in subsection (c), appellant's argument turns primarily upon whether the circumstances set forth in subsection (c) have been met. Having held that subsection (c) is not controlling of whether an instruction is required under subsection (a), we will address only those portions of appellant's argument that are relevant to subsection (a).5

II.

Appellant argues that the evidence was not sufficient to raise an issue that she was intoxicated, relying upon one case from this court, Nethery v. State, 692 S.W.2d 686 (Tex.Crim. App.1985), cert. denied 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). In Nethery, a witness testified that the defendant had 3 "kamikaze" drinks and smoked a marihuana cigarette in her presence, but that he did not act or appear intoxicated. The defendant gave a written statement upon his arrest in which he stated that he "remembered drinking beer, whiskey, and vodka," smoking marihuana and "being naked and running into some water." Id. at 711-12. A police officer testified that of three shots made by the defendant, one was a hit and that the defendant managed physical maneuvers that were "fairly difficult to do when one is sober." We concluded that "even [the defendant's] statement, while it reflects that [the defendant] was drinking, does not necessarily show intoxication" so as to entitle him to an instruction on temporary insanity caused by intoxication.6 Id. at 712. In other words, while there was evidence that the defendant in Nethery consumed intoxicants, there was not enough evidence of the effect of those intoxicants on the defendant's mental and physical capacity so as to require an instruction.

In the instant case, the Court of Appeals upheld the subsection (a) instruction based upon evidence that appellant smoked marihuana within a few hours of the offense, and that it caused her to feel and act differently and to lose control of her temper.7 While the amount of marihuana smoked was not substantial, there was some evidence that it resulted in a "disturbance" of appellant's thoughts and actions.8 Appellant testified that as soon as she smoked the marihuana she "started feeling funny," began "laughing and crying at the same time," felt a "sudden flash of anger" toward her daughter and told her that she was going to kill her. In addition, an expert testified that marihuana use by a schizophrenic could trigger a psychotic episode and that in his opinion appellant's marihuana usage on the night of the offense "markedly" affected her control over her temper. We hold the Court of Appeals did not err in concluding that there was some evidence of "intoxication" sufficient to raise an issue under subsection (a).

Appellant also argues that the defendant must rely on her intoxication in an effort to excuse her actions before an instruction is called for. Appellant reasons that since she in no way claimed that her marihuana use caused her insanity or otherwise excused her actions, the instruction should not have been given. We disagree. Subsection (a) simply provides that intoxication is not a defense. We do not believe that a defendant needs to rely upon intoxication as a defense in order to implicate this provision. Rather, if there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions, an instruction is appropriate. In the instant case, where the defendant was asserting a defense of insanity in excuse of her actions, but there was also evidence, albeit slight, that her actions could have been precipitated by her marihuana use, the Court of Appeals did not err in holding that the instruction was properly given.9

Having held the Court of Appeals did not err in upholding the subsection (a) instruction, we affirm the judgment of the Court of Appeals.

CAMPBELL, J., not participating.

CLINTON, Judge, concurring.

As I understand its opinion, the majority essentially holds that an instruction on voluntary intoxication at the guilt or innocence phase of trial is not limited to cases in which temporary insanity is relied upon as a defense, but is appropriate any time the evidence raises an issue whether an accused was intoxicated at the time of the offense to the degree that it may have been a causal factor, and the evidence raises an issue whether his intoxication was voluntary. I agree.

Under V.T.C.A.Penal Code, § 8.04(a), voluntary intoxication is not a defense to crime. Under § 8.04(b), however, if intoxication causes a state of temporary insanity, and an offense is committed while in that state, such temporary insanity caused by intoxication, although not an excuse for commission of the crime, may be considered by the factfinder in mitigation of punishment. Now we come to subsection (c) of § 8.04, supra. This provision reads:

Appellant contends it was error for the trial court to instruct the jury under § 8.04(a), that voluntary intoxication is not a defense, at the guilt phase of the trial, because she did not rely upon temporary insanity as a defense at that stage of trial. As I understand it, she contends that § 8.04(c) acts as a limitation, permitting a § 8.04(a) instruction to be given only when the defendant meets his burden of production to show the affirmative defense of insanity and there is also evidence from which the jury could conclude that his insanity was caused by voluntary intoxication.

The majority rejects this contention, and I think correctly so. In essence the majority holds that while a voluntary intoxication instruction is mandated under the circumstances described in subsection (c) of § 8.04, the submission of such an instruction is not confined to those circumstances. Indeed, Article 36.14, V.A.C.C.P., requires the trial court to charge the jury "distinctly" on every aspect of "the law applicable to the case[.]" That means, consistent with subsection (a) of § 8.04, that whenever the evidence raises an issue whether the accused was voluntarily intoxicated at the time he committed the offense, an instruction to the jury that his voluntary intoxication does not excuse his conduct would be appropriate, irrespective of whether the evidence suggests his level of intoxication was such as to have produced a state of temporary insanity. In short, § 8.04(c) was meant to limit the affirmative defense of insanity, and it does so on its face. It was not also meant to limit the State's entitlement to an instruction pursuant to § 8.04(a) that intoxication-less-than-insanity is not an excuse to crime.

With this brief amplification, I join the majority opinion.