Farmer v. State

• Decision Date: 18 October 2012
• Docket Number: NO. 02-09-00278-CR,02-09-00278-CR
• Citation: Farmer v. State, NO. 02-09-00278-CR (Tex. App. Oct 18, 2012)
• Parties: KODY WILLIAM FARMER APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

KODY WILLIAM FARMER APPELLANT

v.THE STATE OF TEXAS STATE

NO. 02-09-00278-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: October 18, 2012

FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

MEMORANDUM OPINION¹ ON REMAND

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.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 actor 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 #3as 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," andthat "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; notexpressing 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 frommaking 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 ofpresumptions, that an instruction should be permissive rather than mandatory), cert. denied, 541 U.S. 938 (2004)....