Adriane Elaine Otto v. The State of Texas--Appeal from 337th District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00521-CR
Adriane Elaine OTTO,
Appellant
v.
The STATE of Texas,
Appellee
From the 337th Judicial District Court, Harris County, Texas
Trial Court No. 899911
Honorable Don Stricklin, Judge Presiding

Opinion by: Paul W. Green, Justice

Dissenting opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 23, 2004

AFFIRMED

Appellant Adriene Elaine Otto was charged with felony driving while intoxicated (DWI). Otto pled not guilty to the charge. Following a jury trial, Otto was convicted and sentenced to four years' imprisonment. She now appeals in three issues. All three issues deal with the trial court's charge to the jury.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm Otto's conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In her first issue, Otto contends the trial court erred by submitting a concurrent causation charge to the jury. Specifically, Otto contests the charge because she claims it contradicts the instruction that the jury must find beyond a reasonable doubt that the intoxication was caused solely "by the reason of introduction of alcohol into [her] body." Otto's third issue also deals with the concurrent cause instruction, arguing that the trial court erred by submitting an instruction "that permitted [her] to be convicted on a theory not alleged in the indictment."

In its charge to the jury, the trial court first instructed the jurors that they could convict Otto if they found beyond a reasonable doubt that she had driven or operated a motor vehicle in a public place while intoxicated. The charge went on to define "intoxicated" as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body." In addition, the court included an instruction, at the State's request, on causation pursuant to Texas Penal Code section 6.04. Tex. Penal Code Ann. 6.04(a) (Vernon 2003). The instruction read as follows:

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

Therefore, if you find from the evidence beyond a reasonable doubt that the intoxication of the defendant would not have occurred but for the defendant's conduct, as charged in the indictment, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient, you find the defendant criminally responsible. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not criminally responsible. . .

Under the Texas Penal Code, an accused can not be held criminally responsible for an offense unless the intoxication would not have occurred but for the accused's actions. Section 6.04(a) states:

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Penal Code Ann. 6.04(a) (Vernon 2003).

Under this statute, a "but for" causal connection must be established between the defendant's conduct and the resulting harm. Id.; Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). If a concurrent cause is present, there are two possible ways in which this "but for" requirement may be satisfied: (1) the defendant's conduct may be sufficient, by itself, to have caused the result notwithstanding any concurrent cause; or (2) the defendant's conduct and a concurrent cause together may be sufficient to have caused the result. Marvis v. State, 36 S.W.3d 878, 881 (Tex. Crim. App. 2001); Robbins, 717 S.W.2d at 351. In spite of these possibilities, a jury may not convict a defendant if the concurrent cause alone is clearly sufficient to produce the result and the defendant's conduct alone is clearly insufficient. Robbins, 717 S.W.2d at 351; Medina v. State, 962 S.W.2d 83, 86 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd).

On appeal, Otto argues that the concurrent cause instruction is misleading to the jury and in conflict with the rest of the charge because the instruction permits her to be convicted on a theory not alleged in the indictment, namely on the theory that her intoxication was caused by a combination of drugs and alcohol. In her brief, Otto relies on the Texas Court of Criminal Appeals case, Rodriguez v. State to support her argument. 18 S.W.3d 228 (Tex. Crim. App. 2000). Her reliance, however, is misplaced.

In Rodriguez, a driving while intoxicated case, the defendant testified that he had not been drinking, but that he had been taking flu medication which had made him drowsy. Id. at 229. The charge, submitted over Rodriguez's objection, defined "intoxicated" as not having the normal use of mental or physical faculties "by reason of the introduction of alcohol, a drug, or a combination of both. . .into the body." Id. The application paragraph of the charge authorized the jury to find Rodriguez guilty if it found him intoxicated "by the reason of the introduction of alcohol into his body"or, separately, "by the reason of the introduction of a combination of unknown drugs and alcohol into his body." Id. at 229-30. The appellate court followed the holding in Sutton v. State, 899 S.W.2d 682 (Tex. Crim. App. 1995), and overruled Rodriguez's first issue which claimed the trial court had erred in submitting an alternative theory of guilt which was not alleged in the indictment. Rodriguez, 18 S.W.3d at 230. But the Court of Criminal Appeals reversed, finding the Rodriguez charge to differ from the charge in Sutton in that the latter allowed a conviction only if the jury found the defendant to have been intoxicated with alcohol, whether alone or in combination with a drug that made him more susceptible to the alcohol. Id. at 231-32. (emphasis added). The charge in Rodriguez, on the other hand, included an element not contained in the indictment: intoxication by a combination of drugs and alcohol. Id.

The charge in the present case is more like the charge in Sutton. It did not authorize an alternative means of conviction, and it did not offer the jury the option to choose between intoxication by alcohol alone or intoxication by drugs and alcohol. Instead, the instruction added a clarification regarding Otto's culpability, allowing the jury to find her responsible for her actions only if the resultant intoxication "would not have occurred but for [her] conduct," whether taken alone or in conjunction with another cause. The charge also added a defense, mandating that the jury could not convict Otto if her actions, alone, were clearly insufficient to have caused her intoxication and the concurrent cause, alone, was clearly sufficient to have caused it.

Because the concurrent cause instruction was not in conflict with the rest of the charge and because it did not authorize a conviction on an alternate theory not alleged in the indictment, we overrule Otto's first and third issues.

2. In Otto's second issue, she contends the trial court erred in failing to submit an instruction on voluntariness to the jury. A defendant is entitled to an affirmative defense instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. Id.

Although Otto does not specifically refer, in her brief, to an instruction on involuntary intoxication as opposed to one on general voluntariness, the crux of her argument is that she was involuntarily drugged by a third party and, as such, should be absolved of culpability. Involuntary intoxication is a defense to criminal culpability. Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979). The offense of driving while intoxicated does not include as an element a culpable mental state. Ex parte Ross, 522 S.W.2d 214, 215-17 (Tex. Crim. App. 1975). Therefore, the defense of involuntary intoxication is not relevant to the offense of driving while intoxicated. Aliff v. State, 955 S.W.2d 891, 893 (Tex. App.--El Paso 1997, no pet.). We overrule Otto's second issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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