Kody William Farmer v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00278-CR
KODY WILLIAM FARMER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON REMAND
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I. Introduction
This case is on remand from the court of criminal appeals to consider the
State’s argument, not made in the trial court, that a proposed jury instruction from
Appellant Kody Farmer was a comment on the weight of the evidence. See
Farmer v. State (Farmer II), No. PD-1041-11, 2011 WL 4072126, at *1 (Tex.
1
See Tex. R. App. P. 47.4.
Crim. App. Sept. 14, 2011) (not designated for publication). We reverse the trial
court’s judgment and remand the case for a new trial.
II. Background
The facts of this case are set out in our previous opinion, Farmer v. State
(Farmer I), No. 02-09-00278-CR, 2011 WL 1601311, at *1–3 (Tex. App.—Fort
Worth Apr. 28, 2011, pet. granted) (mem. op., not designated for publication)(op.
on reh’g), judgm’t vacated, 2011 WL 4072126, at *1. Suffice it to say that Farmer
was convicted for driving while intoxicated after ingesting Ambien and Ultram,
and we reversed the trial court’s decision to deny Farmer an involuntary conduct
instruction. Id. The court of criminal appeals granted the State’s petition for
discretionary review and instructed us to consider whether the requested
instruction was a comment on the weight of the evidence. See Farmer II, 2011
WL 4072126, at *1.
III. Requested Instruction
In his appellate brief, Farmer complained that he did not receive the
following jury instruction, which was marked as #2 during the charge conference:
A person commits an offense only if he voluntarily engages in
conduct, including an act, or omission. Conduct is not rendered
involuntary merely because the person did not intend the results of
his conduct. Therefore, if you believe from the evidence beyond a
reasonable doubt that the defendant, Kody William Farmer, on or
about the 19th day of April 2008, did not have the normal use of his
mental or physical faculties by reason of the introduction of a
controlled substance to–wit: zolpidem, tramadol, or a combination of
two or more of these substances, but you further believe from the
evidence, or have a reasonable doubt thereof, that Kody William
Farmer took these drugs by accident, and was not the voluntary act
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or conduct of the defendant, you will acquit the defendant and say
by your verdict “not guilty.”[2]
In its response to Farmer’s appellate brief, the State argued that the trial
court “properly refused [Farmer’s] proposed charges as they were blatant
comments on the weight of the evidence” and that Farmer was not entitled to an
instruction on whether or not he committed a “voluntary act.” The State argued
that Farmer’s requested instruction #2 must be read with another instruction that
Farmer also requested, marked as #3 at the charge conference, to understand its
comment-on-the-weight-of-the-evidence argument:
You are instructed that involuntary intoxication by prescription
medication, or medications, is a defense to prosecution for an
offense when it is shown that the accused has exercised no
independent judgment or volition in taking the intoxicant; and as a
result of his intoxication he did not know that his conduct was wrong
or was incapable of conforming his conduct to the requirement of the
law he allegedly violated. Such a condition of the defendant must
have existed at the very time of the alleged commission of the
offense.[3]
In Farmer I, we reviewed Farmer’s complaint about the trial court’s
exclusion of his requested instruction #2, along with his requested instruction #3
2
This portion of the instruction is almost verbatim from the involuntary
conduct instruction in Texas Practice Series: Criminal Forms and Trial Manual.
See Michael J. McCormick et al., Texas Practice Series: Criminal Forms and
Trial Manual § 105.11 (11th ed. 2005).
3
The State set out what it considered the “pertinent” parts of instructions #2
and #3 in its original brief, its petition for discretionary review, and its brief on
remand; it did not set out anything from Farmer’s requested instruction marked
as #1 during the charge conference. We have set out Farmer’s requested
instruction #1 below in our discussion of whether Farmer sufficiently brought the
voluntary act instruction to the trial court’s attention.
3
as raised by the State. 2011 WL 1601311, at *3–6. We noted that a request for
an instruction on accident “is no request at all,” and that involuntary intoxication is
not a defense to DWI. Id. at *5. But we also concluded that Farmer’s facts were
distinguishable from earlier cases involving prescription drugs and that because
there was some evidence to suggest that Farmer involuntarily took Ambien
because of his wife’s act, the trial court’s denial of Farmer’s requested instruction
#2 constituted some harm under Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g). Id. at *6. Because we did not feel it necessary
to address the substance of Farmer’s requested instruction #2 in order to resolve
the issue before us of whether Farmer was entitled to a voluntariness instruction
at all, we reversed the trial court’s judgment and remanded the case without
considering whether Farmer’s requested instruction #2, or his requested
instruction #3 as raised by the State, constituted an improper comment on the
weight of the evidence. Id.
In its petition for discretionary review, the State argued (1) that we erred by
failing to address its argument that the proposed jury charge was a blatant
comment on the weight of the evidence and (2) that we erred by holding that
Farmer’s action in taking his own prescription medicine was involuntary. In
support of its first ground, the State once again set out Farmer’s requested
instructions #2 and #3 to support its argument that “the instruction to the jury that
they MUST believe that [Farmer] ‘exercised no independent judgment or volition
in taking the intoxicant’ is a blatant comment on the weight of the evidence,” and
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that “the requested charges regarding whether or not he committed a voluntary
act in taking his prescription medication demanded that the jury believe that he
exercised ‘no independent judgment’ in taking his own medications.” The court
of criminal appeals granted the State’s petition only with regard to ground one.
Farmer II, 2011 WL 4072126, at *1.
A. No Objection
The State did not object to Farmer’s requested instruction #2, or the other
two instructions requested by Farmer, as a comment on the weight of the
evidence, and we previously held that it therefore failed to preserve this
argument for review. See Farmer I, 2011 WL 1601311, at *6. However, the
court of criminal appeals has instructed us that
[w]hen 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.
Farmer II, 2011 WL 4072126, at *1. Therefore, we will consider the State’s
previously unarticulated objections set out above, which it also set out in its brief
on remand, as well as setting out what it considered the “pertinent” parts of
Farmer’s requested instructions #2 and #3.
B. Comment on the Weight of the Evidence
Code of criminal procedure article 36.14 requires that the trial court deliver
a written charge “distinctly setting forth the law applicable to the case; not
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expressing any opinion as to the weight of the evidence, not summing up the
testimony, discussing the facts or using any argument in his charge calculated to
arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc.
Ann. art. 36.14 (West 2007). The court of criminal appeals has recently written
on the issue of a jury instruction or definition being a comment on the weight of
the evidence, stating,
With only limited exceptions, the trial court may not include an
instruction that focuses the jury’s attention on a specific type of
evidence that may support a finding of an element of an offense.
Juries are free to “consider and evaluate the evidence in whatever
way they consider it relevant to the statutory offenses,” and “special,
non-statutory instructions, even when they relate to statutory
offenses or defenses, generally have no place in the jury charge.”
An instruction, albeit facially neutral and legally accurate, may
nevertheless constitute an improper comment on the weight of the
evidence.
Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (citations and
footnotes omitted).
We have also observed that
[a] charge that assumes the truth of a controverted issue is a
comment on the weight of the evidence and is erroneous. Likewise,
a court’s jury instruction violates article 36.14 if it “obliquely or
indirectly co[n]vey[s] some opinion on the weight of the evidence by
singling out that evidence and inviting the jury to pay particular
attention to it.” Also on the “near end” of the “improper-judicial
comment” spectrum is an instruction that is simply unnecessary and
fails to clarify the law for the jury.
Hess v. State, 224 S.W.3d 511, 514 (Tex. App.—Fort Worth 2007, pet. ref’d)
(citations omitted). And we have noted that “[t]he trial court must refrain from
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making any remark calculated to convey to the jury its opinion of the evidence in
a particular case.” Harkins v. State, 268 S.W.3d 740, 745 (Tex. App.—Fort
Worth 2008, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 38.05 (West
1979)). A charge that assumes the truth of a controverted issue is a comment on
the weight of the evidence and is erroneous. Id.
C. The State’s Argument and a Fair Reading of the Requested Instruction
The State argues that the instructions—by which we infer, from the way
the State has laid them out in its various briefs, that it means Farmer’s requested
instructions #2 and #3—required the jury to believe Farmer’s story and
demanded that the jury “MUST” believe his theory of the case, but this argument
is without support. As set out above, a fair reading of the only two instructions
discussed on appeal simply does not support what the State says.4 Nonetheless,
because the last sentence of Farmer’s requested instruction #3—the “must”
sentence—may improperly cast at least part of that instruction in the language of
command, it may arguably constitute an improper comment.5 See Brown v.
State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003) (stating, in discussion of
4
We expressed no opinion on the substance of Farmer’s requested
instructions #2 and #3 in Farmer I because the issue before us was whether an
instruction was warranted rather than the language used. See Farmer I, 2011
WL 1601311, at *6. We did not address Farmer’s requested instruction #1, set
out below, because no one raised it in the original appeal, as no one has done in
any of the briefs filed with regard to this case.
5
Again, we pointed out in Farmer I that involuntary intoxication is not a
defense to DWI and that the defense of accident is no longer available. See
2011 WL 1601311, at *5.
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presumptions, that an instruction should be permissive rather than mandatory),
cert. denied, 541 U.S. 938 (2004). But as our discussion below demonstrates,
whether it constitutes a comment on the weight of the evidence remains
irrelevant to our ultimate disposition of the appeal.
D. Resolution
The State seeks for us to overrule Farmer’s sole point on appeal, which is:
“The trial court erred in denying Appellant’s request for a jury instruction on
whether or not he committed a ‘voluntary act.’” And as noted above, the court of
criminal appeals refused the State’s second ground: “Did the Court of Appeals
err in holding that Appellant’s action in taking his own prescription medicine was
‘involuntary?’” See Farmer II, 2011 WL 4072126, at *1. Therefore, the real issue
before us remains whether requested instruction #2, if flawed, was still sufficient
to bring the issue of voluntary conduct to the trial court’s attention and thereby
preserve Farmer’s error so that the “some harm” standard under Almanza
applies. See Kirsch, 357 S.W.3d at 649, 652; see also Louis v. State, No. PD-
0323-11, 2012 WL 2007632, at *8 (Tex. Crim. App. June 6, 2012) (noting the
well-established jury charge harm analysis standards under Almanza).
The code of criminal procedure does not require a defendant to request an
instruction in perfect form; rather, the requested charge must only be sufficient to
call the trial court’s attention to the omission in the court’s charge. Chapman v.
State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (referencing Tex. Code Crim.
Proc. Ann. art. 36.15); see also Ex parte Moreno, 245 S.W.3d 419, 430 (Tex.
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Crim. App. 2008) (“A defendant’s requested jury instruction need not be flawless
or even correct in order to call the trial court’s attention to a deficiency in the
charge and thereby preserve error.” (emphasis added)); see also Bennett v.
State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“Defensive instructions must
be requested in order to be considered applicable law of the case requiring
submission to the jury.”).
In deciding whether the trial court understood the request for an
instruction, we must examine the record for statements by the trial court that
reflect what its understanding was, the general theme of the defense evidence,
the various defensive theories presented at trial, and anything else that may shed
light on whether the trial court understood the objection. Jackson v. State, 288
S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
During his opening statement, Farmer’s counsel said, “I will ask at the end
of the testimony that what happened here was an inadvertent taking of a
prescription medicine.” Farmer and his wife both testified during the defense’s
case. Farmer testified that his wife put his pills out for him to make sure that he
took them, that he did not intentionally take the wrong pill, and that he must have
taken the wrong pill by accident or by mistake, thinking it was something else.
Farmer’s wife testified that she laid his pills out for him, including the one,
Ambien, that he was supposed to take only at night, and that she felt responsible
for the mistake because she had not set them far enough apart for Farmer to
distinguish his morning pills from his evening pills.
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During the charge conference, the trial court asked if there were any
charge requests, and Farmer’s counsel replied, “I have three proposed jury
instructions. I need to make copies on two of them.”
Farmer’s requested instruction #1, as included in the record, reads as
follows:
You are instructed that involuntary intoxication is an affirmative
defense to prosecution. A person is involuntary intoxicated when:
1. the accused has exercised no independent judgment or
volition in taking the intoxicant; and
2. as a result of his intoxication he did not know that his conduct
was wrong or was incapable of conforming his conduct to the
requirements of the law he allegedly violated.
In order to satisfy #1, you are hereby instructed [that] the accused:
1. was unaware he had ingested an intoxicating substance;
2. ingested an intoxicant by force or duress; or
3. took a prescribed medication according to the prescription.
Therefore, if you believe from the evidence beyond a reasonable
doubt that on the occasion in question the defendant, DEFENDANT,
did drive while intoxicated, as alleged in the information, but you
further believe from the evidence, or you have a reasonable doubt
thereof, that the driving was the result of an involuntary intoxication
of the defendant, then you will acquit the defendant and say by your
verdict “Not Guilty.”
His other two requested instructions, #2 and #3, have already been set out
above.6 After a brief recess, the trial court addressed Farmer’s requested
instructions:
6
As we previously noted above, Farmer did not complain about the
omission of requested instruction #1 in his appeal, and the State did not address
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THE COURT: All right. So the evidence that we have here then is—
and, again, before we—We’ll recall each side to remember the test
for an instruction is if there is any evidence in the record. And it’s
not up to me, as the person who decides whether or not to put it in
the charge, whether, you know, I think it’s sufficient or enough. The
test is, is there any evidence in the record which if true would
support the requested charge.
So, the way—and I’ll listen to each side’s comments. But the
way I’ve heard the evidence, it seems like it’s saying that the
defendant recognizes the substances were in his body. He does not
recollect how they got there. His wife has testified that she laid out
the Ambien on a microwave and also testified to not seeing it there
on the day that the defendant was arrested, which would infer that
the substance was—I mean, there’s an ambiguous inference. I
mean, you could argue that he did know what it was when he took it,
or you could just as forcefully argue that he saw the drug sitting
there, he knew he was supposed to take them, and he took them.
So the question that we get at then is whether or not the—We
have a question, potentially, of voluntariness, which would
encompass voluntary intoxication. I’m not so persuaded that the
proposed—Let’s look at these jury instructions. The first one, I’m a
little bit concerned with this one because it looks like you’re asking
me to instruct them that in order to satisfy number one, you’re
hereby instructed that these things are true. I’m a little bit concerned
that that’s kind of a comment on the evidence.[7] I think—I think I—I
think jury instructions—So, I’m willing to put in there something
about voluntariness of the act and voluntary intoxication.
State’s position? [Emphasis added.]
it in its original appellate brief, its petition for discretionary review in the court of
criminal appeals, or its brief on remand.
7
We think it clear from the record that the trial court is specifically referring
to Farmer’s requested instruction #1 here, which would in several ways constitute
a comment on the weight of the evidence. But neither party has argued anything
about requested instruction #1 at any time, in any brief.
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The State argued against Farmer’s requested instructions based on
Nelson v. State, 149 S.W.3d 206 (Tex. App.—Fort Worth 2004, no pet.), and Aliff
v. State, 955 S.W.2d 892 (Tex. App.—El Paso 1997, no pet.), which we have
previously discussed in Farmer I. See 2011 WL 1601311, at *4–5. And the
State addressed involuntary intoxication, which we also discussed in Farmer I.
See id. at *5 (stating involuntary intoxication is not a defense to DWI). The State
then concluded in part by stating,
And I believe in that [Nelson or Aliff] case they’re saying that the only
way that someone could possibly allow an involuntary intoxication
defense is if maybe someone drank alcohol that someone had
crushed medication into. You have to show some kind of conduct
that someone had no control over that a third party did that a person
could possibly not foresee that would show clearly that the act was
involuntary.
In this case, the defendant voluntarily took the intoxicant.
Whether or not he remembered doesn’t matter. Whether or not he
knew exactly whether it was Ultram or Zolpidem, that doesn’t matter.
The fact is that he took the pill. He has a responsibility to know what
he’s actually ingesting in his system.
Farmer’s counsel responded by stating,
Judge, not withstanding State’s argument, I believe the facts of this
case call for an involuntary instruction. We’re not talking about
alcohol here. I have a defense of accident, also, and I’m entitled to
that, also. I think the facts speak for themselves and I don’t believe
that this scenario is exactly the scenario that the State is talking
about. [Emphasis added.]
The trial court replied, “Let me take a look at these cases.”
After a recess, Farmer’s counsel reurged his requested jury instructions,
stating, “I think the facts of this case allow it and I would object to the Court not
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including them in the jury charge.” The trial court overruled his objection. Then
Farmer’s counsel asked to file his requested instructions, and the trial court
stated, “I have them right here and, as soon as the clerk gets here, I’ll have them
filed.” Farmer’s counsel asked, “I did mark them 1, 2, and 3, correct, Judge?”
The trial court responded, “Yes, sir.”
During his closing argument, Farmer’s counsel asked, “Do you think for a
second he took [Ambien] intentionally? . . . You know the facts of this case. You
know what happened here.” The State responded by arguing that common
sense should tell the jury that Farmer should have known which pills he was
taking, stating, “Think about all of the evidence and really think about whether he
really, really just had no idea, or should we put some responsibility on a grown
man to take some care when taking dangerous drugs like this?”
Based on the foregoing and Farmer’s requested written instructions set out
above, which were all filed with the trial court, we think Farmer sufficiently called
the trial court’s attention to his request for an instruction on involuntary act. See
Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998) (stating that the
defendant must object to the charge on a defensive issue before he may be
heard to complain about it on appeal); Wooley v. State, 162 Tex. Crim. 378, 285
S.W.2d 218, 219–20 (1955) (stating that if the requested charge was sufficient to
call the court’s attention to error in the main charge, no further exception or
objection to the charge is necessary to preserve error); see also Tex. Code Crim.
Proc. Ann. art. 36.15 (West 2006) (stating that the defendant may “by a special
13
requested instruction, call the trial court’s attention to error in the charge, as well
as omissions therefrom, and no other exception or objection to the court’s charge
shall be necessary to preserve any error reflected by any special requested
instruction which the trial court refuses.”). Because Farmer preserved his jury
charge complaint, in our harm analysis under Almanza, as previously addressed
in Farmer I, he had only to show some harm. See Kirsch, 357 S.W.3d at 649,
652.
As we previously concluded that Farmer was entitled to an instruction
about the voluntariness of his actions and that failure to include an instruction
constituted some harm, we again sustain Farmer’s sole point. See Farmer I,
2011 WL 1601311, at *6 (stating that the trial court’s denial of Farmer’s request
for an instruction on the voluntariness of his actions constituted some harm, in
that it denied him of a defense that, if believed by the jury, could have resulted in
his acquittal); see also Payne v. State, 11 S.W.3d 231, 232 (Tex. Crim. App.
2000) (holding that a trial court’s error in failing to instruct the jury on
voluntariness of conduct is subject to a harm analysis under Almanza).
IV. Conclusion
Having been instructed by our court of criminal appeals to consider the
unarticulated objection to the requested instructions #2 and #3 in the trial court’s
charge with regard to a comment on the weight of the evidence, and having
concluded that part of requested instruction #3 may have constituted a comment,
we nonetheless again reverse the trial court’s judgment because Farmer was still
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entitled to an instruction on voluntariness, and we remand the case to the trial
court.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 18, 2012
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