Marc E. Rounsavall v. The State of Texas--Appeal from County Court at Law No 1 of Lubbock County
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NO. 07-09-0046-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 17, 2010
________________________
MARC E. ROUNSAVALL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
________________________
FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;
NO. 2007-442,973; HONORABLE LARRY B. “RUSTY” LADD, JUDGE
__________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Marc E. Rounsavall, was convicted of driving while intoxicated1 and
sentenced to 30 days in the Lubbock County Jail and a fine of $2,000, with both the jail
term and the fine being suspended while appellant was on probation for a term of 12
months.
Appellant appeals the judgment contending that the trial court committed
reversible error by denying appellant’s request for a jury charge on the issue of
involuntary intoxication. We affirm.
1
See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).
Factual and Procedural Background
In the early morning hours of January 7, 2007, Julia Beaver was driving home
and had arrived at the intersection of 19th St. and the Brownfield Highway in Lubbock.
Beaver’s car was struck from the rear by a pickup truck being driven by appellant.
Officer Cox of the Lubbock Police Department arrived on the scene first. Cox testified
that when she first observed appellant he appeared confused and had a “deer in the
headlight look.” It was Cox’s opinion that appellant did not know what had happened.
However, Cox did believe that appellant may have been driving while intoxicated and,
as a result, requested additional officers be dispatched to the scene to proceed with a
driving while intoxicated investigation.
Officer Aaron Spann arrived on the scene and took charge of the driving while
intoxicated investigation. Upon his arrival, Spann observed that appellant could barely
stand up and had a blank look on his face. Later, Spann attempted to give appellant
several of the field sobriety tests. According to Spann, appellant could not perform any
of the tests and appeared to be intoxicated. Appellant was subsequently arrested and
taken to the Lubbock Police Department holding facility where a breath test was
administered. The result of the breath test revealed a blood alcohol concentration of
.099 and .104. These tests results were stipulated before the jury.
During the trial of the case, the only contested issue was how appellant became
intoxicated. Appellant presented evidence that he had two drinks between 9:30 and
10:30 p.m. on the evening before his arrest at approximately 5:00 a.m. the next
morning. Appellant further testified that on the evening of his two drinks, he had taken
2
the prescription sleep aid, Ambien. Appellant stated he had no recollection of any
events until he awoke in the holding facility at the Lubbock Police Department. Further,
appellant testified that after he returned to his home he found two bottles of alcohol that
had been completely emptied and that his bottle of Ambien had been scattered in his
bedroom.
Appellant further presented the testimony of James Booker, Ph.D., toxicologist,
who testified about the effect that Ambien can have on certain individuals. The doctor’s
testimony revealed that the drug, especially in its instant release formula, could render a
person into a somnambulistic state, or a state of sleepwalking.
The doctor further
testified that, a person suffering from somnambulism might take actions that he might
not otherwise take. The essence of appellant’s evidence was that he did not voluntarily
consume any additional alcohol after the two earlier drinks and the consumption of the
Ambien.
At the conclusion of the evidence, appellant sought a jury charge on involuntary
intoxication.
The trial court denied the request and the jury was charged under a
standard driving while intoxicated charge plus a paragraph on “synergistic effect” and
another paragraph on voluntariness of appellant’s actions.
The jury subsequently
convicted appellant of driving while intoxicated and this appeal followed.
Appellant contends that the trial court erred by not giving the requested charge
on the issue of involuntary intoxication.
We disagree with appellant and affirm the
judgment of the trial court.
3
Standard of Review
In the trial of any case before a jury, the court is required to give the jury a written
charge that distinctly sets forth the law applicable to the case, without expressing any
opinion about the weight of the evidence or discussion of the evidence. See TEX. CODE
OF CRIM. PROC. ANN.
art. 36.14 (Vernon 2007). When an appellant, as here, alleges that
the trial court has committed error in the “Court’s Charge”, a reviewing court is
presented with a two part inquiry.
See Druery v. State, 225 S.W.3d 491, 504
(Tex.Crim.App. 2007). First, the reviewing court must determine whether error has
been committed.
Id.
If error has been committed, the reviewing court must then
determine whether the error was harmful. Id.
In the case before the Court, appellant contends that error was committed when
the trial court failed to give the requested jury charge on the issue of voluntary
intoxication.
The record supports the appellant’s position that there was ample
evidence presented before the trial court regarding whether or not the later alcohol
consumed by appellant was consumed voluntarily. This is the important fact because
both the State’s expert and the appellant’s expert testified that if appellant had
consumed no additional alcohol his breath test would have shown no alcohol in his
blood stream at the time of the test. The record reflected that at the time of appellant’s
breath test the results were 0.099 and 0.104. The record is also dispositive of the
question of whether or not appellant has preserved this issue by requesting a charge
with sufficient particularity so as to place the trial court on notice of what his complaint
was.
4
Appellant cites us to the case of Walters v. State for the proposition that a
defendant is entitled to a jury instruction on any defensive issue raised by the evidence,
regardless of how strong, weak, challenged, or uncontested that evidence may be. See
Walters v. State, 247 S.W.3d 204, 209 (Tex.Crim.App. 2007). The statement is a true
statement of the law, however, that proposition is not dispositive of this case. The first
question we must answer is, which element of the offense of those that the State is
required to prove does the requested charge attach.
The elements of driving while intoxicated are 1) appellant, 2) on or about the date
specified, 3) while intoxicated, 4) operated a motor vehicle, 5) in a public place. See
TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).2 Conspicuously absent from the statute
defining driving while intoxicated is a requirement for a culpable mental state. The
penal code provides that a culpable mental state is required, even if the offense does
not prescribe one, unless the definition plainly dispenses with any mental state. See §
6.02(b). In answer to the requirement of section 6.02(b), the penal code provides that
proof of a mental state is not required for conviction of an offense under chapter 49.
See § 49.11.
For this reason, the case law in Texas is unanimous that a trial court does not err
when it refuses to give a jury charge on involuntary intoxication in a driving while
intoxicated case. See Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.—El Paso 1997, no
pet.), Nelson v. State, 149 S.W.3d 206, 211 (Tex.App.—Fort Worth 2004, no pet.) The
State directs the court to a subsequent case from the Fort Worth Court of Appeals that
2
Further reference to the Texas Penal Code Annotated will be by reference to Ҥ
___” or “section ___.”
5
is factually very similar to the case before us. See Brown v. State, 290 S.W.3d 247, 250
(Tex.App.–Fort Worth 2009, pet. ref’d) (appellant in that matter had two drinks before
taking Ambien and had no recollection of any of the events that transpired until he was
having his blood drawn at the hospital). The Fort Worth court held that involuntary
intoxication was not a defense to driving while intoxicated for four reasons: 1) legislature
had not seen fit to include a culpable mental state in the offense; 2) the Texas Court of
Criminal Appeals has declined to include a culpable mental state in the offense; 3) that
court had previously followed the legislature and court of criminal appeals direction in
the Nelson case; 4) all other Texas courts that had considered the question had come
to the same conclusion. Id. We agree with our sister courts and find the trial court did
not err when it denied appellant’s request for a jury charge on the issue of involuntary
intoxication.
Because we find no error in the trial court’s action, we do not need to address a
conditional issue appealed by the State regarding the trial court’s granting of an
instruction on voluntariness.
Conclusion
Having found no error, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
6
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