C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS E R IC S A K IL, Ap pe lla nt,
v.
TH E ST AT E O F TE XA S, Appellee
. § § § § § § No . 0 8- 05 -0 03 42 -C R

Appea l from the 168th District Court of El Pa so County , T e xas (TC# 20040D06403)

O P I N I O N Er ic Sakil a

pp e a ls f ro m hi s c onvic tio n f

or the of fe ns e of a ssa ult , e nh anc e d a g a ins t a member of

his family

or household. In two issues, Appellant ar g ues the trial c ourt err ed by (1) inc lud inga

de fi nit ion

of vo luntary

int oxic a tio n in

its c ha rg e to t he jur y , a nd (2 ) b y re fu sin g to allow the jury

to consider the e ffe ct of menta l illness in determining whe ther he possessed the requisite state of

mind. On September

24, 2004, El Paso Poli ce O ffice rs Sandra Z amudio and Jaime Cordero
we re dis patc he d to an a

pa rtme nt c omp le x at the c or ne r o f M on tana

and on Ma ple Str e e ts i n El Paso County

in response to a

domestic disturbance . When they arr ived, a r esident of the
c omp le x dir e c te d th e m to an u ps ta ir s a pa rtme nt whe re Ap pe lla

nt, his wi fe , Cl a

ud ia Sakil (“ Cla ud ia ” ), and

the ir c hil dr e n li ve d. Of

fi c e r C or de ro and

ano the r o ff

ic e r d e ta ine d App e lla

nt i n the apa rtment, while Off

icer Z amudio left to locate Claudia. She found her downstairs being treated by EMS and fire de partment pe rsonnel; she ha d a cut to the lef t side of her

fac e and blood
on he r s hir t and arm .Offic er Z amudio testified that Claudia told her, on the da y of the incide nt, she was 1 struck by the door whe n Appellant for ced it open. A t trial, Claudia alleg ed that she w as not struck as a

result of the door

beingforc ed open. Rather, she w as struck a s a re sult of either he r or Ap pe lla nt s te pp ingon

the br ok e n d oo r c a

us ing , a “ pie c e of wo od c ome fl yingon

the op po sit e side of [her] face .” -2- Offic er Z amudio testified that Claudia told her that she and Appe llant started ar g uing about the pate rnity

of one of the childre n. At some point, Appellant g rabbe d some of Claudia’s pa pe rs and be g an r ipp ingthe m up . Cl a ud ia a lso tol d h e r t

hat sh e and

Ap pe lla nt c on tin ue d to argue until he suddenly

left the a partment. As soon a s Appellant wa s outside, Claudia locked the door bec ause A

ppellant had thre atene d to kill her. Appellant then be g an to kick and punc h the door in an e ffor

t to force it open. Claudia g rabbe d her two c hildren and attempted to esca pe thr ou g h th e wi nd ow . H ow e ve r, be c a us e the a pa rtme nt w a s o n th e se c on d f loo r, sh e de c ide d to wait until Appellant opened the door and try and esc ape to f

ind help. Appellant wa s able to for ce the do or op e n, br e akin g the fr ame and the do or -l oc k in

the pr oc e ss. Cla

ud ia wa s st ru c k b y so me part of the door as a

result of Appe llant forcingit open. Ultimately , she wa s able to esc ape f rom 1 the apa rtment and c alled 911. Appellant wa s indicted for a ssault on a member of his family

or household and he pled not guilty . After

a trial on the me rits, a jury found him g uilty

of the off ense a s alleg ed in the indictment and the trial c ourt assesse d punishment at seven year s’ conf inement in the Ins tit uti on a l D ivi sio n o f t

he Te xas D e pa

rtme nt o f C ri min a l Just ic e . App e lla nt t ime ly fi le d h is
no tic e of a pp e a l and the tr ia l c ourt

c e rt if ie d h is r ig ht o f a

pp e a l. In I ssue One, A

ppellant contends the trial court e rre d by including a

definition of
vo luntary int oxic a tio n in

its c ha rg e to t he jur y . Sp e c if ic a lly , App e lla

nt a rgue s th a t be c a

us e he did not rely on or ra ise the def

ense of insanity or tempora

ry insanity , and the State did not prove that-3-

he wa s intox icated, submission of the voluntary intox ication instruction to the jury was
e rr on e ou s. Th e fi rs t st e p in

ana ly zinga jur y c ha rg e iss ue is t o d e te rm ine wh e the r e rr or e xists
. Ngo v. Sta te , 1 75 S.W. 3d

73 8, 74 3 ( Te x.Cr im. Ap p. 20 05 ); Al ma nz a v . S

tate , 686 S.W .2d 157, 171 (Tex.Crim.App. 1984). I f we find err or, then we must analy ze the err or for

harm. Ngo , 175 S.W .3d at 743. Where, a s here , appellant objec ted to the jury char g e, an e rror

does not war

rant
reve rsal unless the r ecor d shows “some ha rm” to appe llant. Id . Har m require d for r ever sal includes any

actua l harm, re g ardle ss of the degree . An de rso n v . S tate , 11 S.W .3d 369, 374 (Tex.App.--Houston [1st Dist.] 2000, pet. re f’d) . We assess the ac tual deg ree of har m in light of the cha rg e as a whole, the state of the e vidence , including the contested issues a nd weig ht of probative e vidence , the ar g ument of counse l, and any other re levant information revea led by the
rec ord of the tr ial as a whole. Al ma nz a , 6 86 S.W. 2d

a t 17 1; Ro dr igu e

z v . S tate , 90 S.W .3d 340, 360-61 (Te x .App.--E l Paso 2001, pet. ref ’d). I t is well settled that a trial cour t must i nstruct the jury

on the law a

pplicable to the c ase. T EX .C ODE C R IM .P R OC .ANN . a rt . 3 6. 14 (V e rn on

20 07 ); Tay lor

v . S tate , 885 S.W .2d 154, 157 (Tex.Crim.App. 1994). I t is also true that the trial cour t must i nstruct the jury

on voluntary int oxic a tio n, “ wh e n te mpo ra ry ins anit y is r e lie d u

po n a s a de fe ns e and

the e vid e nc e te nd s to show that such insanity

was c aused by

intox ication . . . .” SeeT EX .P EN .C ODE ANN . § 8.04(c) (V e rn on 20 03 ). Ho we ve r, e ve n if a de fe nd ant d oe s n ot r e ly

up on te mpo ra ry ins anit y a s a defe nse, the instruction may still be g iven in appropr iate cir cumstance s. Taylor , 885 S.W .2d at 157-58. A voluntary

intox ication instruction is appropriate when “ there is evidence from any
so ur c e that mi g ht l e a d a

jur y to c on c lud e tha

t th e de fe nd ant’ s intoxic a tio n s ome ho w e xcu se d h is-4-

actions . . . .” Id . at 158. In the pre sent ca se, there was testimony of Appe llant’s history

of substance abuse by de fe ns e wi tne ss D r. Da

vid F . B ri on e s. Dr . B ri on e s te sti fi e d th a t App e lla nt’ s su bs tanc e a bu se contributed to many

of his problems. Dr. B riones stated that Appellant had violated pa role thre e times for cur fewinfrac tions and testing positive for drug s or alcohol. Dr . Br iones also indicated that althoug h Appellant first de nied eve r havinga proble m with drug s and alc ohol, he later
a dmi tte d th a t he ha d u se d “ ‘s pe e d a nd pil ls’ ” wh e n h e wa s e ig hte e n. Ac c or din g to D r. B ri on e s, Appellant admitted to using marihuana “‘to g o to sleep’” and to havinga prior c onviction for dr ivi ngwh ile int oxic a te d, a s w e ll a s tw o p ri or pu bli c int oxic a tio n c onvic tio ns . D r. B ri on e s a lso testified that Appellant’ s history of druguse included the use of a lcohol, marihuana , amphetamines, a

nd heroin. Duringcross-e x amination, Dr. B riones stated that overuse of speed c ould cause a per son to “g et ac cele rate d,” “c rampe d up,” “w ired up,” hy perstimulated,” “ para

noid,” “hy

pervig ilant,” and lose slee p. Dr. B riones also stated that overuse w ould cause a per son to be “hy perative” and “testy” and that “testy ” mea nt oversensitive, unc ooperative, and possibly combative. Dr . Br iones did not, however , opine that Appellant wa s likely under the influence of some intox icant at the tim e of the a ssa ult
. At the c ha rg e c on fe re nc e , App e lla

nt o bje c te d to the tr ia l c ourt ’s su a s po nteinclusion of the Section 8.04 voluntary intox ication cha

rg e on the g round that there was no e vidence of intox ication. The tria l court over ruled the obje ction on the basis that there was e vidence that Ap pe lla nt w a s n ot a c tin g ri g ht, that he wa s r e stl e ss, havin g tr ou ble sle e pin g , a

nd be ingpa ra no id and that fr om those conditions, coupled with the doctor’ s testimony of the possible ef

fec t of-5-

drug s, a jury

might re ach the conclusion that he w as intox icated. Our re view of the rec ord re flec ts that the Appellant had be en in jail for a bout a wee k and
was re lease d on the af

ternoon or e veningof September 23, 2004, and he ha d arr ived home soon there afte r. The r ecor d also ref lects that whe n the 911 tape w as play ed for the jury , the 911 operator specif

ically asked Claudia if

her husba

nd was “ intox icated or

high on dr

ug s” and Claudia said “no.” The 911 ope rator r epeated the question and Claudia a g ain denied he was intox icated. We find that there w as insufficie nt evidence for a ny fac t finder to re ach the conclusion that Appellant’s psychotic beha vior and re sulting assa

ult on his wife was c aused by his voluntary intox ication. Such a f

actua l conclusion, so weakly based on py

ramided infe renc es, is simply not supported by

the evidenc e. See Ro dr igu e z v . S tate , 899 S.W .2d 658, 668 (Tex.Crim.App. 1995)(Sec tion 8.04 inst ruction not appropr iate whe n appellant identifie d no evidenc e indicating he us e d intoxic ants prior to or duri ng the commission of the offe nse). Ac cording ly , we c onclude that the trial cour

t erre d in including the voluntar y intox ication instruction in its charg e to the j ur y. B e c a us e the e rr or

in t he c ha rg e wa s th e su

bje c t of a tim e ly ob je c tio n in the tr ia l c ourt , reve rsal is requir ed if the e rror is “ca lculated to injure the rig hts of defe ndant,” whic h means that there must be some harm to the Appe llant. Al ma nz a , 686 S.W .2d at 171. The State a rgues that inclusion of the voluntary intox ication instruction was ha rmless as beingsuperf

luous, citing Zul ian i v . S

tate , 52 S.W .3d 825 (Tex.App.--Austin 2001), rev’d on other grounds , 97 S.W .3d 589 (Tex.Crim.App. 2003) and Ol iv ar e z v . S tate , 1 71 S.W. 3d

28 3 ( Te x.Ap p. -- Da lla s 2 00 5, pe t. ref ’d)( mem. op., not desig nated f or publication). Those courts held that objec ted to Section 8.04-6-

c ha rg e s w ou ld b e ha

rm le ss b e c a

us e it w a s su

pe rf luo us . We do no te , h ow e ve r, tha t in bo th t ho se
case s there w as evide nce of voluntary

intox ication at or c lose to the time of the cr ime so that the char g e wa s proper

under Taylor . The State a lso argues that the c harg e is a super fluous
a bs tr a c tio n a

nd the Court of Cr imi na l App e a ls h a s in de e d h e ld t hat r e ve rs ibl e e rr or

on ly oc c ur s in g iving a bstract instructions whe n the instruction is incorre ct or misleadingstatement of the la w which the jury

must understand to follow the applica tion paragraph. Se e Plata v . S tate , 926 S.W .2d 300, 302 (Tex.Crim.App. 1996). As we note d above, the Texas Court of Criminal Appeals has he ld that a Section 8.04 instruction on voluntary

intox ication is appropr iate any time the evidenc e ra ises an issue whe ther the ac cused w as voluntarily intox icated at the time of the off ense to a deg ree that it may

have been a causa l fac tor. Taylor , 8 85 S.W. 3d 15 8. I t is the n a

State ’s c ha

rg e . It e ff e c tiv e ly c re a te s a presumption that an intox icated pe rson has the r equisite mental state, thus re lieving the State of its burden of provingall elements of the offe nse beyond a re asonable doubt. So, rather than a superf luous abstrac t, where , as her e, ther e is an issue of the sufficie ncy of the e vidence , it is a due proce ss issue beca

use it cre ates a

presumption that the Appellant’ s mental state wa s not at issue and ef fec tively relieve s the State of its burden of provingall elements of the offe nse beyond a
rea sonable doubt. Se e Mo nta na v . E ge lho ff , 518 U.S. 37, 116 S.C t. 2013, 135 L .Ed.2d 361 (1 99 6) . Rathe r, it p la c e d a burd e n o n th e Ap pe lla

nt t o p ro ve that he wa s n ot v olu nta ri ly intox icated. T his is harmful err or. We sustain I ssue One. In I ssue Two, Appe llant contends the trial c ourt err ed by “re fusing to allow consideration of the e ffe ct of menta l problems in determination [sic] of the re quisite state of mind.” Afte r
re vie wi ngAp pe lla

nt’ s b ri e f, his sp e c if

ic c omp la int

is n ot r e a dil y

a pp are nt. Ap pe lla

nt m e re ly-7-

points to several objec tions made duringclosing arguments, some of which w ere never ruled on by the trial cour

t, and a motion for a

mistrial which was a lso never r uled on by

the trial cour

t. Appellant then c oncludes that the tria l court’s inclusion of the de finition of involuntary intox ication, “in conjunc tion with the mult iple eff orts of the State to cla ssify Appellants’ [sic] argument of mental he alth problems as a defe nse of diminished ca pacity , alongwith the trial court’s c ontinued denial of obje ctions reg ardingthe misplaced a rgument, contributed to jury misunderstandingof its consideration on the element of mens rea , which re sulted in harm . . . .” We n ote tha

t App e lla nt’ s argume nt c on sis ts o nly of c on c lus or

y state me nts la c kin g any

c itatio n to leg al authority . Thus, he pre sents nothing f or our r eview. SeeT EX .R.A PP .P. 38 .1 (h ); Jense n v. Sta te , 66 S.W .3d 528, 534 n.3 (Tex.App.--Houston [14th Dist.] 2002, pet. re f’d)
. In any event, we construe A

ppellant’s complaint as c ontending the trial cour t erre d in not allowing him to present evidenc e of me ntal illness to negate the mens rea element a nd improperly

limit ing his c losing a

rgument. We disag ree . Her e, Appe llant was not preve nted from prese nting e vidence of his mental condition. First, the tria l court explicitl y g rante d trial counsel permission to elicit testimony from Ms. L ily

Sakil (“L ily ”), A

ppellant’s mother, a s to his his tory of beha vioral problems. How ever , when tria l counsel questioned L ily , she stated that she was not familiar with Appe llant’s history . For example, when aske d if she eve r re alized that Appellant had proble ms, she stated that at some point, a f riend ha d told her that Appe llant had bee n in a
me nta l ho sp ita l. T he State ob je c te d to the te sti mony

a s h e ars ay . T ri a l c ouns e l th e n a sk e d L ily if she had e ver visited her

son while he wa s at the hospital and she r eplied that she ha d not. Trial
co un s el th en co n cl u d edh i s qu es t i o n i n g. Appellant’s wif

e, Claudia, ne x t testified about his history of mental illness. Trial c ounsel-8-

first asked Claudia

if she thoug ht her husband ha d mental problems. She stated that “[h] e nee ds help.” When aske d what she me ant by needinghelp, Claudia stated that she thought he neede d a chec k-up for

diabetes. When trial c ounsel asked if she knewof any

other c ondition, she stated that sh e did

no t. Wh e n a sk e d if

he r h us ba nd ha d a me nta l c on dit ion , s he ind ic a te d th a t sh e did not know. Claudia did testify that she told police whe n they arr ived on the day

of the incide nt that Appellant had me ntal problems and a sked that he be taken to the hospital. When asked, Claudia stated that she f

irst beca me awa re that her husband ha d a “me ntal condition” on “September

19.” She also testified that she persona lly had take n Appellant to a menta l hospital
on e month p ri or

to t he inc ide nt a

nd he wa s ta kin g me dic a tio n a s a

re su lt. Appellant then c alled Dr . David F . Br iones, a psychiatrist, to testify on his behalf. Dr. B riones testified that Appe llant had a history of using medications for

psy chiatric problems. Dr. B riones stated that Appellant was c urre ntly taking “Ge odon,“ an a

nti-psy chotic medication wh ic h is a lso us e d f

or imp uls e c on tr ol o r m oo d r e g ulatio n p ro ble ms, “ Ce le xa, ” an a nti de pr e ssa

nt, and also “ Teg retol,” a

mood stabiliz er. When trial c ounsel attempted to question Dr. B riones about Appellant’ s childhood psy cholog ical proble ms, the State objected a nd the trial cour

t lim ite d D r. B ri on e s’ s te sti mony to p re se nt c ir c ums tanc e s. Dr. B riones then g ave his e x pert opinion as to Appellant’ s medical c ondition. Dr. B riones testified that Appe llant suffer ed fr om a psy chotic disorder , had a history of bipolar disorder, poly substance a buse or a buse of dr ug s and alc ohol, personality problems with antisocial and impulsive features, and a seizure disorder
. Acc ording ly , we disagree that Appellant wa s preve nted from introduc ing e vidence rele vant to whether

he possessed the requisite mental state . Even if the tr ial court ha d not-9-

allowed Appe llant to present evide nce of his mental illness, under T EX .R.E V ID . 403, the trial court ha s discretion to prec lude evidenc e of me ntal illness during the g uilt/i nnocenc e phase of the tr ia l if the pr ob a tiv e va lue of

the e vid e nc e is s ub sta

nti a lly outw e ig he d b y

the da ng e r o f u nf a ir prejudice , confusion of the issues, or misleadingthe jury , or by consideration of undue dela y , or needle ss presentation of cumulative evide nce. Se e J ac k so n v . S tate , 160 S.W .3d 568, 574 (Tex.Crim.App. 2005). We now turn to Appellant’s a rgument that the trial cour t improperly

limit ed his closing argument. Duringclosing argument, Appellant attempted to a rgue that the State f

ailed to prove Ap pe lla nt p os se sse d th e re qu isi te me nta l st a te a s a re su lt o f h is m e nta l il lne ss. Th e State
re pe a te dly

ob je c te d a nd the tr ia l c ourt

su sta ine d s ome of

the State ’s ob

je c tio ns . D e sp ite Appellant’s c laim to the contrar y , while he may

prese nt evidence of mental illness to the jury , he may not then ar g ue to the jury

that he did not have the capa city to intentionally , knowing ly , or
rec klessly perf orm an a ct. Jack

son , 160 S.W .3d at 574. I ssue Two is over ruled. We r e ve rs e the tr ia l c ourt ’s jud g me nt a nd re mand fo r f ur the r p ro c e e din g s c on sis te nt w ith this opini on. J une 12, 2008 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., Carr, J., and Ba raja s, C.J . (Ret.) Carr, J., Not Participating B ara ja s, C.J. ( Re t.) (S itt ingby As signme nt) (Publish)