## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00508

- CR

___________________________

On Appeal from the 29 7th Distri ct Co urt Tarrant County, Texas Trial Court No. 1536852D

Before Gabriel, Kerr, and Birdwell , JJ. Memorandum Opinion by Justice Birdwell 

### E RIC 

### R ICHARDSON 

### , Appel lant

V



### . T H E 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Eric Richar dson appeals from his conviction for driving while
intoxicated . In t wo poin ts , he c hallenges a fee assessed against him a s a court cost and t h e trial court ’ s denial of his requested jury question o n invo luntary intoxication. We affirm the judgment as modified.
I. Background Appellant has a h istory of suffering seizures. On Marc h 1 0th , 201 8, he was

a dmitted to Medical City Arlington (MCA) afte r suffering several seizure episodes

. At the hospital, he was ad mini stered anti

- seizure medication. A fter each seizure, appellant became temporar ily confused

. Appellant ’ s wife testified that when he has a seizure, “he wakes up dazed and confused, very s weaty, glassy eyed. He doesn’t remember anything.” While he was at MCA, “ [t] here were points that he didn’t remember why he was in the hospital ” and “ was in and out of understand ing why he
was there.” The doctor who treated appellant in MCA ’ s emergency room explained
that , after the type of seizures appellant experienced, patients “ usually have something called postictal con fusion. It is a confusion status. It is a very debilitating status.

. . . They’re just very, very confused. This lasts for a few minutes to up to two days.” The doctor stated that appellant had a seizure in the eme rgency room and as a result
was in postict al status for about fifteen minutes but then returned to hi s normal
baseline status

.3 MCA d oc tors originally planned to discharg e appellant on March 11 , but
b ecause of concerns about medication side effects

— appellant became lighthea ded
when standi ng

— the treating neurologi st recommended that he stay ano the r day. Around 9:00 p.m. on March 11, appellant ’ s wife took a showe r , planning to sleep on a sofa in appellant ’ s hospital room

. W hen she went into the ro om after her showe r , appellant wa s no longer there

. After midnight , Sharily s Ve l ez and her family woke to the sound of appel lant banging on the front doo r of their house in Arlingt on and demanding to be let in. The family did not k now ap pellant or w hy he was tryin g to enter their home. Velez
called 9

- 1

- 1

. Whe n police re sponded, they found appellant in his car sl owly reversing his car f

rom where h e had parked it on the street in fr ont of Velez ’ s house

. Th ey s topped appella nt and disc overed th at he had a gash on the top of his h ead and that he had an
IV in his arm. A n ambulance was called , and once it arrived, officers spoke with
app ellant

. H e admitted that he had been drink ing. Officers found open contain ers of
beer in his car

— two 25

- ounce cans of Bud Ice beer, one empty and one partially
empty

— as well as a receipt f or the beer ’ s purchase at around 10:30 p.m. earlier that evening. Based on their investigation and appellant ’ s per formance on the horiz ontal
gaze nyst agm u s test , the officers decided to arrest appellant for driving while
intoxicated

.4 The ambulance took app ellant back to MCA . There, he declined to give the
officers perm ission for a b lood draw, so th e offic ers applied fo r an d received a bl ood
draw warrant. Subseq uent a nalysis of his blood showed a blood alcohol
concentration of 0.178 (plus or minus .017)

. At trial, the MCA emergency room doct or who had treated appellant testified
that Keppra, the medi cat i on adm inistere d to appellant for his seizures , can cause drowsiness or sleepiness, as well as loss of coordination, as a side effect. He further
stated that taking Keppra with alcoh ol can i nc rease the side effect of Keppra, and Keppra can increase alc oho l ’s effect

. Ho wever , he further testified that Keppra i s not
an intoxi cant
. Appellant ’ s attorney requested a jury question on involuntary intoxication
b ased on “ t he seizures, the Keppra, and the [h o sp ital] treatment ” : [App ell a nt ’ s attorney] : Judge, and one more thing. I just

— I might request an involuntary intoxication instruction.

. . . . THE COURT: You mean

— well, just tell me what you

— in general, what you want i t to say. [Appellant ’ s attorney] : Well, I mean, basically it wo u ld follow the language

— the voluntariness lang uage in the code that, you know

— I think I addressed it in voir dire, and if they believe that, you know

— that this offense was not committ ed volunta rily, you know, then

— to that effect.
THE COURT: W ell , okay. But you ’ re gonna have to

— what contributed or wha t e vidence in the record is there that he was intoxicated involuntarily?5 [Appellant ’ s attorney] : I think everything in conjunc tion with regards to the seizures, the Keppra, and the treatment at th e h o spital just prior to

— and we ’ re talking hours prior to an encounter with law enforcement at a house. THE COURT: Well, I would agree if

— if your expert had said you can become intoxicat ed or his actions were the result of involuntary intoxication because of t he medication, because the hospital admi nistered the med ication and that was probab

— arguably involuntary, although, I guess he had to consent to that. But there ’ s nothing in the rec ord that s ays that it

— it was solely the result of the Keppra

. And if you ’ re gonna say, Well, it ’ s a combination, then

— then the pu rchase of the Bud Ice and drinking the Bud Ice, there ’ s nothing to say that that was involuntary

. There ’ s nothing in the reco rd that sp eaks to that. [Appellant ’ s attorney] : Yes, Judge.
THE COURT: I j ust

— I ’ ll thi nk about it. If you want to have a proposed charge that you want to put in the record, that ’ s

— I ’ ll think about it, but
I

— [Prosecutor] : Judge, that ’ s like say ing that s omeone else gave him all the alco

— I mean, someone else do sed hi m and he didn ’ t give it to himself. THE COURT: Well, you ’ re not gonn a get it

— [Prosecutor] : There ’ s no evidence of that.
THE COURT: You ’ re just

— you ’ re not gonna get it based upon the totality a nd the

— and the combination of

— of drugs and alcohol because t he a lcohol was a voluntary act. There ’ s nothing to say that the
consum ing of alcohol was involuntary. [Appellant ’ s attorney ] : And

— THE COURT: So then

— so then you ’ re left with, Okay, wel l, was it just the Keppra? And because he ’ s having seizures, that ’ s n ot i ntoxication. So then you have

— then you have to rely on the Keppra6 and there ’ s just nothing in the

— in the

— in the record to say t hat it was just the Keppra and that was involuntary. [ Prosecutor ] : And Keppra is not an intoxicating substance

. I mean, the re w as testimony about that. [Appellant ’ s attorney] : I ’ m not claiming t hat it is

. THE COURT: Hence my point about nothing in the record stating that. So, you know, if Dr. Wha t ’ s

- His

- Na me would have said that, then you might be there, but I just

— I j ust can ’ t

— I just can ’ t get there. I

— I just can ’ t see that

— that anything contri buting to his intoxication, i f any, would have been involuntary other than the administering of the medi cation whi ch is combined with the alcohol was

— had to have been

— alcohol wo u ld have had to have been a voluntary act , so I just

— I just can ’ t go there with you, Co unsel. Novel theory, though. [Prosecutor] : Can the State just put something on the record too
r eal quick? The medical records

— THE COURT: If you must. [Prosecutor] : Th e medical records make it clear that this defendant consented and anything that ’ s given to him in the hospital is, therefore, voluntary. He ’ s not being held there against his own fre e will and dosed with medicines that he has not consented to the admin ist r ation of.
THE CO URT: Yeah, I kind of said that. Thank you for adding to it th ough. [Prosecutor] : You ’ re welcome. THE COURT: All right. Anything else? [Appellant ’ s attorn ey] : Nothi ng further, Judge. [Emphasis added

. ]7 At the trial co n ference, appellant ’ s attorney read a proposed involuntary
into xication ques tion into the record

. T h e tria l court d enied the requested instruction. The jury found appellant guilty and assessed punishment at four years ’ confinement

a nd a $1,000 fine. The trial court sentenced appellant accordingly.
II. Emergency Medical Services Fee In appellant ’ s first point, he challenges the “ Emergency Medical S ervices ” f ee assessed agai nst him a s a court cost . He argues that art icl e 102.0185(a) of the Texas
Co de of Criminal Procedure , the statutory provision on which the fee was based, is facially unconstitutional

. See Tex. Code Crim P roc . Ann. art. 102.0185( a). Based on th is court ’ s opinion in C as

as v. State , 524 S. W.3 d 921, 927 (Tex. App.

— Fort Worth 2017, no pet.) , the State concedes the point

. A ccordingly, we modify the judgment to
omit the challenged fee. 1
I II
. Jury Charge In appel la nt ’ s sec ond point, he argues that the trial court erred by deny ing h is requested jury charge on involuntary intoxication.
Altho ugh appellant ’ s attorney m enti oned appellant ’ s seizures in initially arguing
for the instruction, from tr ial court ’ s stateme nts in response , the trial court clearly
focused the di scu ssion on whether there was any evidence that appellant ’ s medication,

1 The legislature amended t his article after this cou rt ’ s Casas opinion, but the changes do not apply to a conviction f or an offe nse committed before the effecti ve date o f th e amen dme n t . W e make no comment on the effect of that amendment.8 either alone or in com bination with alcohol, was an intoxican t, and appellant ’ s attorney did not argue that ev idence of app ellant ’ s s ei zures could support submitting

an involuntary int oxi cation question

. Appellant ’ s requested instruction further
clarified the parameters of the request: Section 6.02(a) of the Texas Penal Code states a person commits an offense onl y if h e v oluntarily eng ages in conduct including an act a n o missio n or possession [

. ]

. . . . A defense asserted in this case is that the defendant was involuntary [ ily ] intoxicated to the point that he could not form the intent to voluntarily engage in cri minal cond uct un der Section 6.02( a). As a result of taking a subst anc e as p rescribed , the defendant was so intoxicated that he could not form the intent to volunta rily engage in conduct at the time of the offense. In determining the issue of involuntary in toxi cat ion, yo u may consider t he testimony of expert and nonexper t w itness es. The use of medications [ , ]

. . . consumption of intoxicating liquor, drug, or other substance that merely arouses passion, diminishes perceptions, releases inhibition, or clouds reason and j u dgment do es not excuse the commission of a crime; therefore, if you f ind that the defendant was involuntarily intoxicated to t he extent of being incapable of forming the necessary voluntary [ ] intent to engage in the conduct, or if you have a
r easonable do u bt thereo f, you should find the defendant not guilty. [Emph asi s adde d.] Appellant did not re quest an instruction that because of the effects of his seizures, he committed a nonvolitiona l act. He requested an instruction that because
of the m edica tio n prescribed a nd administered to him to treat his c ond ition, he did
not have the normal use of his mental or physical faculties such that he could not9 form the intent to voluntarily engage in conduct at the ti me of the offense

. See Tex.
Penal Co de Ann. § 49.01 (2) (defining “ intoxicated ” ). While s ome test imo ny at trial
indic ated that his medication could make a patient drowsy or uncoordinated , no evidence s upport ed a fin ding based on the instruction appellant requested

. Instead,
the only evidenc e at trial was that Keppra is not an intoxicant. Accordingly , r egardl ess of whether involuntary intoxicati on is a defense to DWI of fenses in Texas , see Farmer
v. State , 411 S.W.3d 901, 908 (Tex. Crim. App . 2013) ( Co chran, J., concurring ) (stating
that Tex as law rec ognizes an affirmative defense of invo luntary intox ica tion w hen the
accused has no independent judgment or volition in taking the intoxica nt and, as a result of his intoxication, did not know that his conduct was wrong) , appellant was

no t entitle d to his r equested involuntary intoxication instruction. See id

. at 9 06 (stating
that a defendant is entitled to a jury instruction on a defensive issue raised by the
evidence ).
I V. Conclusion We modify the trial cou rt ’ s judgment to omit the Emergency M edic al Ser vices
fee , and we affirm the judg ment as m odified.10 /s/ Wade Birdwell Wa de Bir dwell Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 28, 2019