Jose Perez v. The State of Texas--Appeal from 331st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00253-CR
Jose Perez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0955311, HONORABLE BOB PERKINS, JUDGE PRESIDING
A jury convicted appellant, Jose Perez, of attempted murder and aggravated assault with a deadly weapon, see Tex. Penal Code Ann. 15.01, 19.02, 22.02 (West 1994), and assessed punishment at fifteen years in prison. In a single point of error, appellant contends the trial court erred in including an intoxication-defense instruction in the charge to the jury. We will affirm.

FACTUAL BACKGROUND

On the evening of September 1, 1995, John Dixon and several friends, including Tiffany Yanbra, drove to a convenience store. While Dixon was inside the store, an altercation broke out between appellant and Yanbra outside the store. Dixon left the store and stepped between his friend and appellant. He asked appellant what he thought he was doing (or words to that effect), and appellant responded by stabbing him in the neck.

The events leading up to the stabbing were disputed by the parties at trial. According to the State's version of events, appellant approached Yanbra while she was standing on the sidewalk near the entrance to the store. He began "throwing" gang signs. She asked him to stop and tried to walk away. Appellant began to verbally abuse Yanbra, repeating "you not down with that." He slapped her in the face and pushed her into the window near the door. At that moment, Dixon walked out of the store, stepped between Yanbra and appellant, and was stabbed in the neck without any other provocation.

According to appellant's version of events, he was walking by the store when he suffered a grand mal seizure. He saw Yanbra and reached out to her for help. She mistook the muscular spasms and twitching caused by the seizure for gang signs. Just as the seizure was ending, Dixon exited the store and intervened. Mistakenly thinking appellant was attacking his friend, Dixon grabbed appellant by the testicles. In a desperate response to extreme pain, appellant stabbed him. None of the witnesses saw appellant having a seizure, nor did they see Dixon grab appellant.

Appellant fled the scene but was arrested shortly after the offense occurred. The arresting officer testified that appellant appeared agitated and confused, and he assumed appellant was intoxicated. Appellant's medical records reflected that when he was brought to central booking, he was observed to be intoxicated. Appellant's medical records also indicated that he later stated he was intoxicated at the time of his arrest. In addition, his roommate testified that appellant had been drinking on the evening of the offense and that his temper is especially violent when he drinks. At trial, however, appellant denied that he was intoxicated at the time he stabbed Dixon.

 

DISCUSSION The trial court must deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 1989 & Supp. 1998). When the defendant claims that the charge was flawed, the appellate court must determine whether the charge was erroneous and, if so, whether the error was harmful. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If the defendant objected to the error at trial, then the objection will call for reversal so long as the error was not harmless. Id. In other words, an error in the court's charge does not require automatic reversal; there must be some harm stemming from the error. Id. at 174.

At issue in the present case is whether the court erred in instructing the jury, pursuant to Tex. Penal Code Ann. 8.04(a) (West 1994), that "[v]oluntary intoxication does not constitute a defense to the commission of a crime." In a single point of error, appellant objects to the inclusion of this instruction in the court's charge to the jury. Appellant argues that the instruction was improper because intoxication was never a part of his defensive theory, he testified that he was not intoxicated, and he did not request the instruction. The State argues in response that the trial court was not precluded from giving the instruction merely because appellant did not rely on intoxication as a defense.

The Texas Court of Criminal Appeals rejected similar arguments raised by the defendant in Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994). In that case, the defendant was charged with the murder of her four-year-old daughter. She pleaded not guilty by reason of insanity. At trial, the defendant presented evidence that she suffered from paranoid schizophrenia. There was also evidence that she had shared a marihuana cigarette with her common-law husband on the night of the murder, and that marihuana use by a schizophrenic could trigger a psychotic episode. The trial court instructed the jury that "intoxication does not constitute a defense to the commission of a crime." Id. at 155. As in the present case, the defendant objected to the instruction because she had not raised any defensive issues on that basis. The jury convicted the defendant of murder and assessed punishment at life in prison. On appeal, the defendant argued that the intoxication-defense instruction was improperly given because she had asserted the defense of temporary insanity, not temporary insanity caused by intoxication. The court of criminal appeals rejected the defendant's argument that the instruction should be given only in cases where the defendant has relied on intoxication as an excuse for her actions. Id. at 158. Rather, the court stated that the proper inquiry is whether the evidence adduced at trial raised an issue of the defendant's intoxication so as to warrant the instruction. Since there was evidence that the defendant's marihuana use might have precipitated her offense, the court held that the instruction was appropriate. Id. The court further explained that the instruction was not a comment on the weight of the evidence. Id. at 158-59 n.9. The jury was free to find that the defendant was insane so long as they did not attribute her insanity to voluntary intoxication. Id.

In the present case, the record contains some evidence that raised an issue as to whether appellant was intoxicated at the time of the offense. Appellant's roommate testified that appellant had been drinking for several hours before the offense and that his temper is especially violent when he drinks. The arresting officer testified that appellant appeared intoxicated. Appellant's medical records indicated that he was observed to be intoxicated when he was brought to central booking and that he later stated he was intoxicated at the time of his arrest. Following the analysis set forth in Taylor, we conclude that the intoxication-defense instruction was adequately supported by the evidence. We also note that, like the instruction in Taylor, the instruction in the present case was not a comment on the weight of the evidence.

Even if the instruction were improper, it would not constitute reversible error here. Since the present case does not involve constitutional error, the proper inquiry is whether the error affected substantial rights of the appellant. Tex. R. App. P. 44.2(b). We conclude that the relevant instruction in the court's charge, assuming there was error, does not pass this threshold.

 

CONCLUSION

Having overruled appellant's single point of error, we affirm the conviction.

 

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating

Affirmed

Filed: March 12, 1998

Do Not Publish

constitute a defense to the commission of a crime." In a single point of error, appellant objects to the inclusion of this instruction in the court's charge to the jury. Appellant argues that the instruction was improper because intoxication was never a part of his defensive theory, he testified that he was not intoxicated, and he did not request the instruction. The State argues in response that the trial court was not precluded from giving the instruction merely because appellant did not rely on intoxication as a defense.

The Texas Court of Criminal Appeals rejected similar arguments raised by the defendant in Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994). In that case, the defendant was charged with the murder of her four-year-old daughter. She pleaded not guilty by reason of insanity. At trial, the defendant presented evidence that she suffered from paranoid schizophrenia. There was also evidence that she had shared a marihuana cigarette with her common-law husband on the night of the murder, and that marihuana use by a schizophrenic could trigger a psychotic episode. The trial court instructed the jury that "intoxication does not constitute a defense to the commission of a crime." Id. at 155. As in the present case, the defendant objected to the instruction because she had not raised any defensive issues on that basis. The jury convicted the defendant of murder and assessed punishment at life in prison. On appeal, the defendant argued that the intoxication-defense instruction was improperly given because she had asserted the defense of temporary insanity, not temporary insanity caused by intoxication. The court of criminal appeals rejected the defendant's argument that the instruction should be given only in cases where the defendant has relied on intoxication as an excuse for her actions. Id. at 158. Rather, the court stated that the proper inquiry is whether the evidence adduced at trial raised an issue of the defendant's intoxication so as to warrant the instruction. Since there was evidence that the defendant's marihuana use might have precipitated her offense, the court held that the instruction was appropriate. Id. The court further explained that the instruction was not a comment on the weight of the evidence. Id. at 158-59 n.9. The jury was free to find that the defendant was insane so long as they did not attribute her insanity to voluntary intoxication. Id.

In the present case, the record contains some evidence that raised an issue as to whether appellant was intoxicated at the time of the offense. Appellant's roommate testified that appellant had been drinking for several hours before the offense and that his temper is especially violent when he drinks. The arresting officer testified that appellant appeared intoxicated. Appellant's medical records indicated that he was observed to be intoxicated when he was brought to central booking and that he later stated he was intoxicated at the time of his arrest. Following the analysis set forth in Taylor, we conclude that the intoxication-defense instruction was adequately supported by the evidence. We also note that, like the instruction in Taylor, the instruction in the present case was not a comment on the weight of the evidence.

Even if the instruction were improper, it would not constitute reversible error here. Since the present case does not involve constitutional error, the proper inquiry is whether the error affected substantial rights of the appellant. Tex. R. App. P. 44.2(b). We conclude that the relevant instruction in the court's charge, assuming there was error, does not pass this threshold.

 

CONCLUSION

Having overruled appellant's single point of error, we affirm the conviction.