In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00508-CR

___________________________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1536852D

Before Gabriel, Kerr, and Birdwell, JJ.

Memorandum Opinion by Justice Birdwell

ERIC RICHARDSON, Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant Eric Richardson appeals from his conviction for driving while 

intoxicated. In two points, he challenges a fee assessed against him as a court cost 

and the trial court’s denial of his requested jury question on involuntary intoxication. 

We affirm the judgment as modified.

I. Background

Appellant has a history of suffering seizures. On March 10th, 2018, he was 

admitted to Medical City Arlington (MCA) after suffering several seizure episodes. At 

the hospital, he was administered anti-seizure medication. After each seizure, 

appellant became temporarily confused. Appellant’s wife testified that when he has a 

seizure, “he wakes up dazed and confused, very sweaty, 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 understanding 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 confusion. 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 emergency room and as a result

was in postictal status for about fifteen minutes but then returned to his normal 

baseline status.
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MCA doctors originally planned to discharge appellant on March 11, but 

because of concerns about medication side effects—appellant became lightheaded 

when standing—the treating neurologist recommended that he stay another day.

Around 9:00 p.m. on March 11, appellant’s wife took a shower, planning to sleep on a 

sofa in appellant’s hospital room. When she went into the room after her shower, 

appellant was no longer there.

After midnight, Sharilys Velez and her family woke to the sound of appellant 

banging on the front door of their house in Arlington and demanding to be let in. 

The family did not know appellant or why he was trying to enter their home. Velez 

called 9-1-1.

When police responded, they found appellant in his car slowly reversing his car 

from where he had parked it on the street in front of Velez’s house. They stopped 

appellant and discovered that he had a gash on the top of his head and that he had an 

IV in his arm. An ambulance was called, and once it arrived, officers spoke with 

appellant. He admitted that he had been drinking. Officers found open containers of 

beer in his car—two 25-ounce cans of Bud Ice beer, one empty and one partially 

empty—as well as a receipt for the beer’s purchase at around 10:30 p.m. earlier that 

evening. Based on their investigation and appellant’s performance on the horizontal 

gaze nystagmus test, the officers decided to arrest appellant for driving while 

intoxicated.
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The ambulance took appellant back to MCA. There, he declined to give the 

officers permission for a blood draw, so the officers applied for and received a blood

draw warrant. Subsequent analysis of his blood showed a blood alcohol 

concentration of 0.178 (plus or minus .017).

At trial, the MCA emergency room doctor who had treated appellant testified 

that Keppra, the medication administered 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 alcohol can increase the side effect of Keppra, and 

Keppra can increase alcohol’s effect. However, he further testified that Keppra is not 

an intoxicant.

Appellant’s attorney requested a jury question on involuntary intoxication

based on “the seizures, the Keppra, and the [hospital] treatment”:

[Appellant’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 it to say.

[Appellant’s attorney]: Well, I mean, basically it would follow the 

language—the voluntariness language 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 committed voluntarily, you know, then—to that 

effect.

THE COURT: Well, okay. But you’re gonna have to—what 

contributed or what evidence in the record is there that he was 

intoxicated involuntarily?
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[Appellant’s attorney]: I think everything in conjunction with 

regards to the seizures, the Keppra, and the treatment at the hospital 

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 intoxicated or his actions were the result of involuntary 

intoxication because of the medication, because the hospital

administered the medication and that was probab—arguably involuntary, 

although, I guess he had to consent to that. But there’s nothing in the 

record that says that it—it was solely the result of the Keppra. And 

if you’re gonna say, Well, it’s a combination, then—then the purchase of 

the Bud Ice and drinking the Bud Ice, there’s nothing to say that that 

was involuntary. There’s nothing in the record that speaks to that.

[Appellant’s attorney]: Yes, Judge.

THE COURT: I just—I’ll think 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 saying that someone else gave him 

all the alco—I mean, someone else dosed him and he didn’t give it to

himself.

THE COURT: Well, you’re not gonna get it—

[Prosecutor]: There’s no evidence of that.

THE COURT: You’re just—you’re not gonna get it based upon 

the totality and the—and the combination of—of drugs and alcohol 

because the alcohol was a voluntary act. There’s nothing to say that the 

consuming of alcohol was involuntary.

[Appellant’s attorney]: And—

THE COURT: So then—so then you’re left with, Okay, well, was 

it just the Keppra? And because he’s having seizures, that’s not 

intoxication. So then you have—then you have to rely on the Keppra 
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and there’s just nothing in the—in the—in the record to say that it was 

just the Keppra and that was involuntary.

[Prosecutor]: And Keppra is not an intoxicating substance. I 

mean, there was testimony about that.

[Appellant’s attorney]: I’m not claiming that it is.

THE COURT: Hence my point about nothing in the record 

stating that. So, you know, if Dr. What’s-His-Name would have said 

that, then you might be there, but I just—I just can’t—I just can’t get 

there. I—I just can’t see that—that anything contributing to his 

intoxication, if any, would have been involuntary other than the

administering of the medication which is combined with the 

alcohol was—had to have been—alcohol would have had to have 

been a voluntary act, so I just—I just can’t go there with you, Counsel.

Novel theory, though.

[Prosecutor]: Can the State just put something on the record too 

real quick? The medical records—

THE COURT: If you must.

[Prosecutor]: The 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 free will 

and dosed with medicines that he has not consented to the

administration of.

THE COURT: Yeah, I kind of said that. Thank you for adding to 

it though.

[Prosecutor]: You’re welcome.

THE COURT: All right. Anything else?

[Appellant’s attorney]: Nothing further, Judge.

[Emphasis added.]
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At the trial conference, appellant’s attorney read a proposed involuntary 

intoxication question into the record. The trial court denied the requested instruction. 

The jury found appellant guilty and assessed punishment at four years’ confinement 

and 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 Services” fee 

assessed against him as a court cost. He argues that article 102.0185(a) of the Texas 

Code of Criminal Procedure, the statutory provision on which the fee was based, is 

facially unconstitutional. See Tex. Code Crim Proc. Ann. art. 102.0185(a). Based on 

this court’s opinion in Casas v. State, 524 S.W.3d 921, 927 (Tex. App.—Fort Worth 

2017, no pet.), the State concedes the point. Accordingly, we modify the judgment to 

omit the challenged fee.1

III. Jury Charge

In appellant’s second point, he argues that the trial court erred by denying his 

requested jury charge on involuntary intoxication.

Although appellant’s attorney mentioned appellant’s seizures in initially arguing 

for the instruction, from trial court’s statements in response, the trial court clearly 

focused the discussion on whether there was any evidence that appellant’s medication, 

 1

The legislature amended this article after this court’s Casas opinion, but the 

changes do not apply to a conviction for an offense committed before the effective 

date of the amendment. We make no comment on the effect of that amendment.
8

either alone or in combination with alcohol, was an intoxicant, and appellant’s 

attorney did not argue that evidence of appellant’s seizures could support submitting 

an involuntary intoxication 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 only if he voluntarily engages in conduct including an act an

omission 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 criminal conduct under Section 6.02(a).

As a result of taking a substance as prescribed, the defendant 

was so intoxicated that he could not form the intent to voluntarily 

engage in conduct at the time of the offense.

In determining the issue of involuntary intoxication, you may 

consider the testimony of expert and nonexpert witnesses. The use of 

medications[,] . . . consumption of intoxicating liquor, drug, or other 

substance that merely arouses passion, diminishes perceptions, releases 

inhibition, or clouds reason and judgment does not excuse the 

commission of a crime; therefore, if you find that the defendant was

involuntarily intoxicated to the extent of being incapable of forming the 

necessary voluntary[] intent to engage in the conduct, or if you have a

reasonable doubt thereof, you should find the defendant not guilty. 

[Emphasis added.]

Appellant did not request an instruction that because of the effects of his 

seizures, he committed a nonvolitional act. He requested an instruction that because 

of the medication prescribed and administered to him to treat his condition, he did 

not have the normal use of his mental or physical faculties such that he could not 
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form the intent to voluntarily engage in conduct at the time of the offense. See Tex. 

Penal Code Ann. § 49.01(2) (defining “intoxicated”). While some testimony at trial 

indicated that his medication could make a patient drowsy or uncoordinated, no 

evidence supported a finding based on the instruction appellant requested. Instead, 

the only evidence at trial was that Keppra is not an intoxicant. Accordingly, regardless 

of whether involuntary intoxication is a defense to DWI offenses in Texas, see Farmer 

v. State, 411 S.W.3d 901, 908 (Tex. Crim. App. 2013) (Cochran, J., concurring) (stating 

that Texas law recognizes an affirmative defense of involuntary intoxication when the 

accused has no independent judgment or volition in taking the intoxicant and, as a 

result of his intoxication, did not know that his conduct was wrong), appellant was 

not entitled to his requested involuntary intoxication instruction. See id. at 906 (stating 

that a defendant is entitled to a jury instruction on a defensive issue raised by the 

evidence).

IV. Conclusion

We modify the trial court’s judgment to omit the Emergency Medical Services 

fee, and we affirm the judgment as modified.
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/s/ Wade Birdwell

Wade Birdwell

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 28, 2019