Craig Emmett Mendenhall v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-98-109-CR

CRAIG EMMETT MENDENHALL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 97-035-CR

C O N C U R R I N G O P I N I O N

Because I do not believe the evidence even raised the issue of involuntary intoxication, I respectfully dissent from the portion of the Court s opinion in which it holds that the trial court erred in refusing to instruct the jury on the affirmative defense. Nevertheless, because the Court holds that it was harmless error, I concur in the result.

Mendenhall had been convicted of a crime and was serving his sentence in a State prison. He was transported to Freestone County to attend his trial for divorce. While in prison, Mendenhall had been diagnosed as a diabetic. On the day of the trial the timing of receiving his medication and his meals was altered. Near the end of a day in which he took a full dose of insulin for adult onset diabetes but, according to his testimony, ate relatively little food, he had a violent episode in which a sheriff s deputy was injured. It just so happened that the violent episode, during which he alleges to have had a black out, occurred at precisely the moment that the trial court orally rendered judgment against him.

Involuntary intoxication is not a defense available to Mendenhall on these facts. First, there is the issue of whether or not involuntary intoxication due to a hypoglycemic reaction should be recognized as an affirmative defense. For purposes of this opinion only, I will assume that it is, notwithstanding that Mendenhall has not been able to cite a single case from across the nation that has recognized such a defense. Second, Mendenhall simply failed to establish the fundamental elements necessary to require the trial court to charge the jury on this theory as an affirmative defense.

Mendenhall s evidence was that he had been diagnosed as a diabetic for over five weeks. He acknowledges that he had received some counseling in prison regarding the disease. Appellant contends that because he had been only recently diagnosed as a diabetic that there is a reasonable inference from this that he did not have the knowledge that he would have hypoglycemic shock given his situation. I believe the inference is exactly to the contrary.

Five weeks is more than enough time for Mendenhall to have determined what it meant to be a diabetic. He asks the judicial system to accept as a matter of law that it is reasonable for a person diagnosed with a disease for which he must receive daily medication to not make any inquiry or do any research into the most basic aspects of the disease. As he states in his brief to fully understand Appellant s claim, an understanding of the disease of diabetes is necessary. As he candidly admits in his brief, the most common cause of hypoglycemia is an insulin reaction,... Commonly, the patient takes the morning dose of medication, i.e., insulin, then becomes sick and cannot eat. The most fundamental element that every diabetic knows or must immediately learn is that there is a direct connection between taking the medication and eating (both when you eat as well as what you eat).

Absent a specific showing that Mendenhall did not know and was unable to discover the consequences of not eating when he continued to take his medication, I cannot hold that the trial court erred in refusing to give an instruction on involuntary intoxication. Also, for the additional reason that he voluntarily ingested the insulin and voluntarily refused or failed to eat food that was made available to him, I would hold that the trial court did not err in refusing to give an instruction on involuntary intoxication.

TOM GRAY

Justice

Concurring opinion delivered and filed January 26, 2000

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