KATHRYN ANN HOWEY, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion Filed February 5, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00483-CR
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KATHRYN ANN HOWEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court of Appeals No. 2
Dallas County, Texas
Trial Court Cause No. MB06-79207-M
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MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Lang
Opinion By Justice Lang
        Following a plea of not guilty, appellant Kathryn Ann Howey was convicted by a jury of driving while intoxicated. The trial court assessed punishment at 180 days' confinement in jail, probated for eighteen months, and a fine of $600. In a single issue on appeal, appellant asserts the trial court erred when it denied her requested jury charge instruction defining a “voluntary act” pursuant to Texas Penal Code section 6.01.
        We conclude the record does not show appellant was entitled to a jury charge instruction regarding voluntary conduct in this case. Therefore, we decide appellant's issue against her. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Officer Bobby Watkins, a member of the Dallas Police Department “DWI squad,” testified at trial he had been a police officer for seventeen years and had completed specialized training in standardized field sobriety testing. He testified that while on patrol in the late evening on November 30, 2006, he observed appellant's vehicle speeding on McKinney Avenue. According to Watkins, appellant was going “45 or 44” miles per hour in a “30 mile per hour” zone. Watkins proceeded to follow appellant in his police vehicle. When appellant failed to maintain a single lane of traffic, Watkins activated his overhead flashing lights and, by way of a speaker on his police vehicle, told appellant to make a right turn into a nearby service station. Appellant proceeded through a red light and continued driving at a high rate of speed. Watkins pursued her with lights flashing and siren activated. Appellant ran a second red light before pulling over.         
        After appellant stopped, Watkins walked up to her vehicle and asked for her license and registration. Watkins testified he detected a strong odor of alcohol on appellant's breath. In addition, Watkins observed appellant's eyes were bloodshot and her speech was “real slurred.” Although the driver's license provided by appellant listed her date of birth as April 21, 1983, Watkins later learned appellant's actual date of birth was April 21, 1986. When asked by Watkins how much alcohol she had consumed, appellant said she had drunk one glass of wine at a bar.
        At that point, Watkins attempted to perform standardized field sobriety tests on appellant. However, Watkins was unable to perform the tests due to appellant's unsteady balance and inability to follow his directions. According to Watkins, appellant exhibited “classic” signs of intoxication “consistent with alcohol.” A female Dallas police officer arrived at the scene, and Watkins and the female officer arrested appellant for driving while intoxicated. Appellant refused to take a blood or breath test. Watkins testified his encounter with appellant was recorded by a video recording system in his vehicle.   See Footnote 1 
        Appellant testified at trial on direct examination that on the night of November 30, 2006, she joined a friend at Cru, a restaurant and wine bar, at about 8:30 or 9 p.m. According to appellant, she had dinner and one glass of wine at Cru. At approximately 10 p.m., appellant drove herself and her friend to Hard Rock Cafe, where they joined other acquaintances. Appellant testified she drank “one or two” glasses of wine at Hard Rock Cafe. Approximately one and one-half hours later, appellant decided to leave Hard Rock Cafe. According to appellant, the last thing she remembered “clearly” was walking past the Hard Rock Cafe valet parking attendants to where she had parked her car. In addition, she “vaguely” remembered seeing flashing police lights behind her. The next thing she remembered was waking up in the county jail.
        Appellant testified she was “used to” consuming alcohol and it is not possible she misjudged the amount of alcohol she drank on the night in question or did not have enough dinner. According to appellant, “there had to be something that happened that, you know, altered me that much.” She testified, “Other than the glasses of wine there was nothing that I introduced into my body.”
        On cross-examination, appellant testified that during the time she was at Hard Rock Cafe, she left her drink unattended at the bar where her friends were standing while she used the restroom. According to appellant, when she returned, her drink was “still there at the bar” and did not appear different in any way. She stated she did not feel intoxicated or “woozy” at the time she left the Hard Rock Cafe. Appellant testified she was later told that between the time she left the Hard Rock Cafe and the time she was pulled over, she drove her friend back to where her friend's car was parked. However, appellant stated she did not remember doing so.
        After both sides rested and closed, the trial court submitted the proposed charge to the parties. The charge authorized the jury to find appellant guilty if they found:
from the evidence beyond a reasonable doubt that on or about the 1st day of December, 2006, [appellant] was intoxicated in that [appellant] did not have the normal use of her mental or physical faculties by reason of the introduction of alcohol into [appellant's] body, and while so intoxicated did then and there operate a motor vehicle in a public place in the County of Dallas and State of Texas, as charged in the Information herein.
 
        During the charge conference, outside the presence of the jury, the following exchange occurred:
THE COURT:
 
What says the Defendant regarding the charge? Have you had a chance to review it?
 
[COUNSEL FOR
APPELLANT]:
 
Yes, Your Honor. I have no objections to the content. I would make one request of a special-well, actually I am not requesting a special issue. I would just request that the Court give a definition or requirement of a voluntary act, simply tracking the language of Section 6.01 of the Texas Penal Code, which states, “A person commits an offense only if he voluntarily engages in the conduct, including an act, an omission, or possession.
 
THE COURT:
 
Okay. That request will be denied.
 
In addition, the trial court denied a requested instruction by the State that involuntary intoxication is not a defense to a DWI offense.
        Following the jury's finding of guilt and the trial court's assessment of punishment, a judgment was signed and entered accordingly. A motion for new trial was filed by appellant. The record is silent as to the disposition of that motion. This appeal timely followed.
II. REQUEST FOR JURY INSTRUCTION REGARDING “VOLUNTARY ACT”
 
        In her sole issue on appeal, appellant contends the trial court erred when it denied her requested jury charge instruction regarding a “voluntary act” as required by Texas Penal Code section 6.01. Appellant asserts she requested a specific charge of “voluntary act” during the charge conference, and a proposed charge was read into the record. Further, appellant asserts, she testified she had no memory of driving her vehicle on the night of the incident at issue. Because her “entire defensive theory was one of 'involuntary act,'” appellant argues, harm is “more than shown in the record.” Therefore, appellant contends, the trial court committed reversible error by denying the proposed charge.
        The State responds that a jury charge regarding voluntary conduct was not appropriate in this case because (1) there was no evidence appellant's conduct of driving her motor vehicle was involuntary and (2) appellant did not admit committing the charged offense. Therefore, the State argues, “appellant's issue should be decided against her and her conviction affirmed.”
A. Standard of Review
1. Jury Charge Error Generally
 
        An appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (citing Hutch v. State 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). Then, if error is found, the appellate court must determine whether the error caused sufficient harm to require reversal. Middleton, 125 S.W.3d at 453; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
        The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Ngo, 175 S.W.3d at 743. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of defendant.” See Tex. Code Crim. Proc. Ann. art. 36.19. This means, in the view of the court of criminal appeals, that if the charge contains error and the error has been properly preserved by objection, reversal is mandated as long as the error is not harmless. Almanza, 686 S.W.2d at 171. However, if no objection was made at trial, reversal is proper only if the error is so egregious and created such harm that it might be fairly said the defendant did not have a fair and impartial trial. Id.
2. Denial of Requested Instruction Regarding Defensive Issue
 
         We review a trial court's decision not to include a defensive issue in a jury charge for an abuse of discretion. See Love v. State, 199 S.W.3d 447, 455 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
        When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). When reviewing a trial court's decision to deny a requested defensive instruction, the appellate court views the evidence in the light most favorable to the defendant. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
B. Applicable Law
 
        Under section 49.04(a) of the Texas Penal Code, a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann.
§ 49.04(a) (Vernon 2003). Additionally, the penal code provides a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). “Voluntariness” within the meaning of section 6.01(a) refers to one's own physical body movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). “If those physical movements are the nonvolitional result of someone else's act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary.” Id.
        Voluntariness has been recognized as a “defensive theory” that, if properly raised, may entitle a defendant to a jury charge instruction. See id. at 640; see also Walters, 247 S.W.3d at 209. Before a defendant is entitled to a charge on voluntariness of conduct, “there must be evidence of an independent event, such as the conduct of a third party, that could have precipitated the incident.” Rhodes v. State, 997 S.W.2d 692, 694 (Tex. App.-Texarkana 1999, pet. ref'd) (citing Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997)). Further, “an instruction on voluntariness under section 6.01(a) is necessary only if the accused admits committing the act or acts charged and seeks to absolve himself of criminal responsibility for engaging in the conduct.” Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.-Austin 2008, pet. ref'd); Trujillo v. State, 227 S.W.3d 164, 169 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).
C. Application of Law to Facts
 
        We begin our analysis by examining whether the trial court erred in denying appellant's request to include “a definition or requirement of a voluntary act” in the jury charge. See Ngo, 175 S.W.3d at 743-44; Middleton, 125 S.W.3d at 453. According to appellant's brief before this Court,
The testimony at trial by appellant was that she did not remember getting into and driving the car. She briefly remembers the flashing lights, then her next memory is of waking up in jail. She testified it was possible that someone could have put something in her drink when she made a trip to the restroom.
 
(citations to record omitted). Appellant contends the evidence supported the charge “in that [she] testified that she had no memory of actually driving the car.”
        In response, the State cites Peavey. See Peavey, 248 S.W.3d at 455. Peavey involved a trial on charges of felony driving while intoxicated and evading arrest. Id. at 458. Defendant Peavey requested a jury charge regarding voluntary conduct based on the language of section 6.01(a), and that request was denied by the trial court. Id. at 464. Following his conviction, Peavey appealed. Id. Peavey argued for the first time on appeal that his defense was “automatism, a defense of an individual not engaging in a voluntary act.” Id. Peavey asserted that defense involves “being unconscious or semiconscious at the time of the acts constituting the defenses.” Id. at 465.
        The court of appeals affirmed the trial court's judgment. The court of appeals stated the difficulty with Peavey's argument was he did not sufficiently point out what evidence supported his claim of automatism. The court concluded:
The fact that appellant testified that he could not recall what had happened when he awakened in jail later that morning does not support his claim of automatism. “[I]t is not enough [to raise the defense of automatism] that the defendant suffers from amnesia and thus cannot remember the events in question.” The evidence demonstrates that appellant's acts were voluntary. Appellant admitted that his consumption of beer on the date in question was voluntary. His claim that he might have been drugged by [an acquaintance] is not supported by the evidence and is mere speculation. There was no evidence to show that appellant was unconscious or semiconscious at the time of the commission of the offenses charged.
 
Id. (citation omitted). In addition, the court concluded an instruction on voluntariness under section 6.01(a) was not necessary because Peavey did not admit committing the offenses charged. Id. at 465-66. The State contends that although appellant does not specifically assert the defense of automatism, “her claim of error suffers the same flaws as Peavey's.”
        The record shows appellant voluntarily consumed at least two glasses of wine on the night of her arrest. The fact that appellant does not recall driving her car or the events surrounding her arrest does not support her claim that she did not voluntarily operate her vehicle. See id. at 465.
        Further, before a defendant is entitled to a charge on voluntariness of conduct, “there must be evidence of an independent event, such as the conduct of a third party, that could have precipitated the incident.” Rhodes, 997 S.W.2d at 694. Appellant asserts in her brief before this Court she testified at trial “it was possible that someone could have put something in her drink when she made a trip to the restroom.” In support of that assertion, appellant cites her testimony on direct examination. However, the portion of the record cited by appellant contains no testimony or questions regarding appellant's drink. The record shows that when asked on cross-examination whether she left her drink unattended at the Hard Rock Cafe, appellant testified:
I mean, I said I remembered going to the bathroom once. But, you know, I really can't tell you if I remember bringing my drink with me. I don't think that sounds like something that I would do. So, I am sure I just left it where my group of friends were.
 
Appellant testified her drink did not appear different in any way when she returned. When appellant was asked on direct examination whether she had “any theories about what might have happened” to explain her behavior on the video recording made by police, she stated, “You know, I can't say anything for sure. You know, there is nothing I can say. But there had to be something that happened that, you know, altered me that much. . . .” The record does not show appellant testified “someone could have put something in her drink.”
        Moreover, like the defendant in Peavey, appellant did not admit she committed the charged offense of driving while intoxicated. Rather, she testified she is familiar with how her body reacts to alcohol and she did not feel intoxicated when she decided to leave the Hard Rock Cafe. “[A]n instruction on voluntariness under section 6.01(a) is necessary only if the accused admits committing the act or acts charged and seeks to absolve himself of criminal responsibility for engaging in the conduct.” Peavey, 248 S.W.3d at 465.         
        Viewing the evidence in the light most favorable to appellant, we conclude the record does not show appellant was entitled to a jury charge instruction regarding voluntary conduct in this case. See Bufkin, 207 S.W.3d at 782; Peavey, 248 S.W.3d at 465. Accordingly, the trial court did not abuse its discretion by denying appellant's requested charge. See Love, 199 S.W.3d at 455. We decide appellant's issue against her.
III. CONCLUSION
 
        We conclude the trial court did not err by denying appellant's requested jury charge instruction regarding a “voluntary act” pursuant to Texas Penal Code section 6.01. Appellant's sole issue is decided against her. The trial court's judgment is affirmed.
                                                                          
                                                          
                                                          ---------------------------------
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.2
080483F.U05
 
 
 
Footnote 1 The record shows the video recording of Watkins's encounter with appellant was viewed by the jury at trial.