Larry Don Miller v. The State of Texas--Appeal from 203rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-162-CR

LARRY DON MILLER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 203rd District Court

Dallas County, Texas

Trial Court # F95-00260-P

O P I N I O N

Appellant Miller appeals from his conviction for murder for which he was sentenced to 25 years in the Texas Department of Criminal Justice, Institutional Division, and a $750 fine.

On October 30, 1994, Appellant kicked in the door of his father-in-law Richard Weiland's apartment, entered and shot Weiland in his bed. He also shot his wife, Leilha Miller and his three-year-old daughter Katrina who were also in the apartment, and each of whom survived.

Appellant was indicted for and convicted of the murder of Weiland. He was indicted for the felony injury to his daughter, and for the attempted murder of his wife.

Appellant appeals on one point of error: "The trial court erred by denying Appellant's requested jury instruction on involuntary manslaughter."

Appellant did not request an instruction on involuntary manslaughter. He did, however, request a charge on involuntary intoxication as a defense to criminal culpability, which was denied by the trial court. And he contends in his brief that the trial court erred by denying his request for an instruction on involuntary intoxication.

Involuntary intoxication is a defense to criminal culpability when it is shown that: (1) the accused has exercised no independent judgment or volition in taking the intoxicant; and (2) as a result of his intoxication the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated. Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979); Hanks v. State, 542 S.W.2d 413, 416 (Tex. Crim. App. 1976).

Thirty-six hours before the time of the murder, Appellant shampooed his older daughter's hair with a lice shampoo which contained pyrethrin. Appellant had asked his wife to shampoo the girl's hair, explaining that he was allergic to the pyrethrin in the lice shampoo. When his wife refused to wash the girl's head, Appellant went ahead and treated the girl's head with the lice shampoo knowing that it contained pyrethrin and believing that he was allergic to the pyrethrin. Thus, Appellant exercised independent judgment in deciding to treat the girl's head. Because Appellant was aware that he was using the allegedly intoxicating substance, any resulting intoxication was voluntary. Further, there is no evidence or showing that Appellant did not know that his conduct in shooting his father-in-law was wrong or that he was incapable of conforming his conduct to the requirements of the law.

We hold the evidence was insufficient to raise the defense of involuntary intoxication and that the trial court did not err in not submitting same.

Appellant's point and contention are overruled. The judgment is affirmed. //

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 20, 1996

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