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. 

 

1See Tex. R. App. P. 47.4.
2

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 
3

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.
4

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 
5

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 
6

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 
7

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 

 

4We 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.

5Again, 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.
8

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. PD0323-11, 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. 
9

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.
10

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:

 

6As we previously noted above, Farmer did not complain about the 

omission of requested instruction #1 in his appeal, and the State did not address 
11

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.

7We 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.
12

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 
13

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 
14

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 
15

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