KODY WILLIAM FARMER, Appellant v. THE STATE OF TEXAS (Original)

IN THE COURT OF
CRIMINAL APPEALSOF TEXAS

PD-1041-11
KODY WILLIAM FARMER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
Per curiam.

O P I N I O N

Appellant testified that he drove his vehicle after mistakenly taking a combination of Ambien (a sleeping medication) and Soma (a medication for muscle spasms), instead of the intended combination of Ultram (a pain medication) and Soma. Appellant's wife laid out his medications for him that morning and said she put the Ambien off to the side and the other two medications together, but later when she checked, they were all gone. At trial, appellant's requested jury instructions on involuntary act were denied. Appellant was convicted of Driving While Intoxicated.

On appeal, appellant claimed that the trial court erred in refusing his requested instructions. The State argued that the proposed instructions improperly commented on the weight of the evidence. The court of appeals refused to address the State's argument in part because the State had not made this argument before the trial court. Farmer v. State, No. 02-09-00278-CR slip op. at 12-13 (Tex. App.-Fort Worth April 28, 2011)(memorandum opinion not designated for publication).

The State has filed a petition for discretionary review in which it complains of the court of appeals' failure to address its argument. When the State is the prevailing party in the trial court, it is not required to present a particular argument in order to raise that argument in a defendant's appeal; rather, the reviewing court is required to view the evidence in a light most favorable to the trial court's ruling and uphold the ruling if correct on any theory of law applicable to the case. See Armendariz v. State, 12 S.W.3d 401, 404-06 (Tex. Crim. App. 2003)(where trial court's ruling denying motion to suppress was supported by record and correct under a theory of law applicable to the case, court of appeals was obligated to uphold it), cert. denied, 541 U.S. 974 (2004); see also State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998)(noting this Court's approval of appellate courts considering alternative theories of law which support trial court's decision). Whether the requested instruction included an improper comment on the weight of the evidence was an issue "necessary to final disposition of the appeal." The court of appeals is required to address "every issue raised and necessary to final disposition of the appeal." Tex. R. App. P. 47.1.

We grant ground one of the State's petition for discretionary review, vacate the judgment of the court of appeals, and remand this case to that court to address the State's argument. Ground two is refused without prejudice.

DELIVERED SEPTEMBER 14, 2011

DO NOT PUBLISH