Chapter 3 Serious Driving Offenses Related to DWI

§ 3:1 Felony offenses related to DWI—Generally

Chapter 49, Texas Penal Code, establishes specific offenses related to intoxication and alcoholic beverage offenses. It should be noted that Texas law defines “intoxication” by either of two ways: (a) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (b) having an alcohol concentration of 0.08 or more.

Misdemeanor offenses are set forth in the Penal Code § 49.04 (motor vehicles), 49.05 (aircraft), 49.06 (watercraft) and 49.065 (amusement rides and assembly of amusement rides).

A driving while intoxicated offense can be classified as a felony offense either through enhancement due to multiple convictions or as a result of the consequences of the conduct alleged.

For purposes of this Chapter the word “vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks like a motor vehicle, aircraft, watercraft, amusement ride and/or assembly of an amusement ride. “Serious bodily injury” means (1) a substantial risk of death, (2) permanent disfigurement and/or (3) protracted loss or impairment of the function of any bodily member or organ.

§ 3:2 - Consequence Felonies

§ 49.045 Driving While Intoxicated With Child Passenger.

(a) A person commits an offense if:

(1) the person is intoxicated while operating a motor vehicle in a public place; and

(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

Penal Code 49.045 became effective September 1, 2003. Until September 1, 2007 courts did not have the discretion of placing a person charged with a DWI related offense on a deferred adjudication probation, but could place such person on deferred adjudication. That changed, however, with the amendment of CCP art. 42.12(5)(d) effective September 1, 2007. For offenses committed prior to September 1, 2007, the court still has the option of placing an accused on deferred adjudication probation for this offense.

Intoxication Assault (Third Degree Felony).

(a) A person commits an offense if the person, by accident or mistake:

(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(b) …

(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Intoxication Assault is punishable as a Second Degree Felony if the serious bodily injury is to a peace officer, firefighter or Emergency Medical Services personnel while that person is in the “actual discharge of an official duty”.

Intoxication Manslaughter (Second Degree Felony).

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.

Intoxication Manslaughter is punishable as a First Degree Felony if the serious bodily injury is to a peace officer, firefighter or Emergency Medical Services personnel while that person is in the “actual discharge of an official duty”.

Other possible felony charges that may result from driving offense(s) could be a violation of the Duty to Give Information and Render Aid and Aggravated Assault with a Deadly Weapon, where a person may have alcohol in his system, is involved in an accident and it is alleged that his conduct was the cause of the injury.

§ 3:3 Enhancement by prior conviction

A misdemeanor DWI may be enhanced to a felony by prior convictions for DWI. A misdemeanor DWI could be charged as a felony due to the accused having previously been convicted of Intoxication Manslaughter under Texas Penal Code § 49.08 or due to two (2) prior convictions for any alcohol related offense set forth in §§ 49.04, 49.05, 49.06 or 49.065. If the priors occurred in another state, and were a substantially similar offense, then the state would be allowed to use such conviction for enhancement purposes.

For purposes of enhancing prior convictions it is important to note that a conviction is final irrespective of whether the sentence for the conviction that was imposed probated. Prior to amendments to the Penal Code effective September 1, 2005, the use of prior convictions was affected by application of a provision of law that restricted the use of prior convictions that occurred more than 10 years apart. There was disagreement whether all convictions had to be within 10 years of each other, whether the 3rd arrest had to occur within 10 years of the 2nd or whether any of the incidents had to occur within 10 years of another. The Texas Court of Criminal Appeals in 2005 held that the convictions must be within 10 years of each other to qualify as an enhancement. This issue has been rendered moot by amendments to Texas Penal Code § 49.09 effective September 1, 2005, which repealed Subsections (e) and (f), and eliminated the 10 year rule with respect to the use of prior convictions for enhancing a misdemeanor DWI to a felony. At present the remoteness of a prior conviction has no bearing on the use of the prior for enhancement purposes. In addition there have been numerous attempts to attack the use of remote priors by claiming that their use amount to an ex-post facto law violation in violation of the prohibitions of the United States and the Texas Constitutions. To date the Texas Court of Criminal Appeals has not issued an opinion on this issue.

The current law in Texas is that for any DWI committed after September 1, 2005, the state can use two prior convictions to enhance the offense to a third degree felony regardless of the remoteness of the prior convictions.

It is also important to distinguish between priors that are being used to enhance one level of crime to another and the use of priors for the purpose of enhancing punishment for the crime for which the defendant is currently charged. An example of the former is where prior convictions for DWI offenses are being used for the sole purpose of enhancing a misdemeanor to a felony. The courts have ruled that the priors are elements of the current offense and are being used to define the current offense as a felony, are set forth in the indictment and are admissible before the jury for the limited purpose of vesting jurisdiction in the district court.

In situations where a defendant may have more than two prior convictions and the state lists more than two convictions in the indictment it is imperative that counsel object to the introduction of any priors that are unnecessary to invoke the district court’s jurisdiction. In such cases it would be appropriate to raise the issue by a motion in limine or a motion to quash. In such cases it is also vital that the defense request an instruction in the courts charge that instructs the jury that the issue of priors is solely for jurisdictional purposes and must not be considered as any evidence whatsoever that the defendant was intoxicated at the time of his arrest for the charge currently be tried.

Prior felony convictions may also be used to increase the range of punishment to which a defendant may be subjected. Pursuant to Penal Code § 12.42(d) it must be shown that any convictions are for offenses that were committed after a previous conviction became final. However in the case of prior DWI convictions used for purpose of enhancing a misdemeanor DWI to a felony DWI, sequencing is not an issue. For example, assume that a defendant was arrested for misdemeanor DWI on January 1 and for another on February 1. Further assume that the defendant pled to both at the same time on March 1. Any subsequent DWI arrest could be charged with a felony.

Penal Code § 49.09 should be analyzed in conjunction with the general enhancement provisions in Chapter 12; a prior conviction can be used to enhance under either § 49.09 or Chapter 12, but not both. It is also important to consider that Penal Code § 12.46 does not preclude the use of prior convictions to be used for enhancement purposes under multiple prosecutions.

§ 3: 4 Sentencing considerations

Generally, a defendant found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action shall be sentenced for each separate offense but the sentences shall be served concurrently. However when the defendant has been found guilty of certain sexual offenses and in cases of intoxication assault or intoxication manslaughter even when tried in one criminal action the judge alone decides whether the sentences shall be served concurrent or consecutive. While the United States Constitution prohibits a person from being punished twice for the same offense it is important to note that it does not prohibit consecutive punishment for separate offenses arising out of the same transaction. The constitutional protection against double jeopardy refers to the same offense not the same transaction. In cases that involve multiple “victims” in assault and manslaughter situations each victim is a different offense arising out of the same transactions. In such cases the judge may order the sentences served consecutively at his discretion.

§ 3:5 Proving underlying convictions

The two previous convictions of DWI are jurisdictional elements of the offense of felony DWI which must be proved to obtain a conviction of felony DWI. To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. There are many ways by which the state can prove the underlying convictions for enhancement purposes. It may do so by way of a certified copy of the previous conviction which contains sufficient information that establishes the existence of the prior conviction and the identity of the defendant as the person convicted, the stipulation of the defendant that he is the same person convicted in the prior matter and/or by testimony of a person who was present when the defendant was convicted and who can identify the defendant as the person convicted. If the State fails to offer evidence of defendant’s two prior convictions, it will not prove the essential elements of the offense of felony DWI.

The mere fact that a defendant has been convicted at least twice before of DWI offenses is undoubtedly highly prejudicial in the eyes of the jury. This is a well known fact and even recognized by the Court of Criminal Appeals. A defendant willing to stipulate to two prior convictions has a right to do so over the objections of the state. However, a defendant who enters into such a stipulation waives any right to challenge the absence of proof in connection with his stipulation and such a stipulation is deemed a judicial admission with respect to the issue. It should be noted, however, that the state must introduce such proof in whatever form during the guilt/innocence phase, not the punishment, phase of the trial. In a case where the priors were introduced only in the punishment phase the conviction was reversed and a judgment of acquittal was ordered.

§ 3:6 Challenging and vacating underlying convictions

In situations where the State must allege prior convictions in a felony prosecution it is important to review the priors for any errors which render them ineligible for such purpose. In many cases the accused will be faced with prior convictions which are based upon guilty or no contest pleas to previous misdemeanors. Such pleas should be carefully examined to see if they have any defects that might affect their use for such purpose. All pleas must meet certain constitutional requirements in order to be valid, such as knowing and intelligent waiver of counsel (especially in cases involving felonies), right against self incrimination, right to trial by jury and to confront the witnesses against him. The waiver of these rights must be clearly shown in the judgment or court record and such protections will not be assumed where the written record is silent.

Prior convictions can be collaterally attacked on direct appeal of the subsequent conviction if it is void as a result of a fundamental or constitutional defect (as opposed to insufficiency of evidence and irregularities in the judgment or sentence). A writ of habeas corpus would be appropriate to attack such matters by way of collateral attack and the following relief is an appropriate remedy for defendant’s claim that prior conviction for DWI for which sentence was completed more than ten years before second DWI offense could not be used as predicate to enhance third DWI to felony under law in effect at time of charge offense, even though defendant had pleaded guilty to felony DWI. The burden of proof showing that the prior convictions are void is on the defendant and must be made by an affirmative showing that the judgment is fatally defective. Lesser irregularities, those not rising to a fundamental or constitutional status, may make a conviction voidable but not render the conviction void as a matter of law. A total deprivation of the right to counsel would render a conviction void whereas ineffective assistance might render a conviction voidable.

Another area to be considered by the defense is in the area of pre-trial issues raised by written motion and ruled upon prior to the entry of a guilty or no contest plea. Prior to 2005 Texas courts applied a rule that held where a guilty plea was voluntary and understandingly made, all non-jurisdictional defects including due process claims were waived. This rule foreclosed a post-conviction attack on a trial court’s pre-trial ruling that certain evidence would, or would not, be excluded at trial. Since Young v. State, 8 S.W.3d 656, 656, (Tex.Crim.App., 2005), however, such rulings are reviewable on appeal if the issues were raised in written pre-trial motions that have been ruled upon by the trial court, before the guilty plea.

§ 3:7 Effect of out-of-state convictions

Out of state convictions can be used for enhancement if it is shown that the out of state conviction is for an offense that contains elements that are “substantially similar’ to the elements of charged offense. The Penal Code § 49.09(c)(F) and (E) provides an offense relating to operating a motor vehicle while intoxicated means: an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated. The defendant has the burden of proving that the out of state conviction is not for a similar offense.

§ 3:8 Civil forfeitures statute

Forfeiture of “contraband” is permitted under Chapter 59 of the Texas Rules of Criminal Procedure. Specifically, § 59.01 defines “contraband” as meaning property of any nature that is used in the commission of any offense under Chapter 49 of the Penal Code that is punishable as a felony of the third degree or state jail felony, if the defendant has been previously convicted three times of an offense under that chapter.

§ 3:9 Lesser included charge

According to the Texas Code of Criminal Procedure, an offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

For purposes of DWI it is established that certain offenses are not lesser included offense. DWI – Class B is not a lesser included offense of DWI – Class A because the issue of a prior conviction in such a prosecution is not admissible in the guilt/innocence phase of the trial. In such a case, it is only during punishment that a prior conviction becomes relevant.

DUI, an offense related to a minor operating a vehicle with any detectable alcohol in his system is, by statute, not a lesser included offense of DWI.

Attempted DWI is not a lesser included charge of DWI.

Misdemeanor DWI is a lesser included offense of Felony DWI only if the record fails to establish that the State failed to prove the priors alleged in the indictment. The submission of a charge on the lesser included misdemeanor would be permissible only in the event a rational jury could find the state failed to meet the burden of proving the priors alleged in the indictment.

However, in the case where a person is on trial for Intoxication Manslaughter or Intoxication Assault it is possible that the accused may be entitled to submission of a lesser included offense of DWI, if there is some evidence that negates or rebuts a required element in the greater charge. In such cases the issue of causation must be proved and if the injury was not a proximate cause of the intoxication the accused may be entitled to a submission on that issue.

Many lawyers refer to pleas to a lesser charge when referring to DWI cases. Actually, in plea cases what the state is doing is dismissing the DWI prosecution and refiling the case as an Obstruction of Highway or Other Passageway, Reckless Driving or perhaps in some cases refilling a Class B DWI as a Class A Deadly Conduct. An example of such a plea bargain can be found in Appendix ### An incentive for an accused to do so is that for these offenses the accused could receive deferred adjudication (something not available in DWI’s) as well as not having to pay surcharges and dealing with other disabilities that come along with a conviction for DWI.

§ 3:10 Jury instructions for felony DWI

A primary consideration in any felony prosecution for DWI is an instruction in the Charge that any priors used or introduced to establish jurisdiction are not to be considered as evidence that the accused was intoxicated in the case for which is currently on trial. As a practice point it is important to voir dire the jury panel on the issue of priors in an attempt to seat a jury that will fully understand that prior convictions are no evidence that the party is guilty of the present offense. Any fair minded or rational person would concede that a person’s history of prior conduct is highly prejudicial when that person is on trial for a similar offense. Otherwise, there would be no reason for Rules of Evidence 403 and 404.

In the case of felony DWI, however, the appellate courts have said the priors are jurisdictional elements of the offense, and therefore must be contained in the indictment, and are admissible in the guilt/innocence phase of the trial. Any counsel that refuses to request a limiting instruction in this area would be doing a great disservice to his client. A list of other possible requested instructions are set forth below.

Where an issue has been raised by the evidence that the Defendant’s conduct was the result of duress the following instruction may be requested:

DEFENDANT’S REQUESTED INSTRUCTION NUMBER ___

You are instructed that under Texas Law it is an affirmative defense to prosecution for the offense of driving while intoxicated as alleged herein that the defendant engaged in the conduct charged because he was compelled to do so by force or threat of force.

Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

The defense of duress is unavailable if the defendant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant’s standpoint.

Under our law the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.

The term "preponderance of the evidence" means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the ___ day of ___, ____, the defendant, _______________, did drive or operate a motor vehicle in a public place, in ________ County, Texas, while intoxicated, as alleged in the information, but you further find by a preponderance of the evidence that the defendant drove or operated the motor vehicle because he was compelled to do so by force or threat of force that would render a person of reasonable firmness incapable of resisting the pressure, and that the defendant did not intentionally, knowingly, or recklessly place himself in a situation in which it was probable that he would be subjected to compulsion, then you will acquit the defendant and say by your verdict “not guilty”.

AUTHORITY: TEXAS PENAL CODE, SECTION 8.05.

In situations where the basis of the stop and detention is suspect, that issue may be submitted to a jury under Texas Criminal Code of Procedure Art. 38.23.

DEFENDANT’S REQUESTED SPECIAL INSTRUCTION NUMBER ___

You are instructed that Texas law provides that, any evidence obtained by an officer in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be disregarded by the jury on the trial of any criminal case.

You are further instructed that it is a violation of the Constitution of the State of Texas and of the Constitution of the United States of America for an officer to stop or detain a motorist unless the officer has probable cause to believe, or a reasonable suspicion, based on specific articulable facts, that the motorist is committing or has committed an offense.

Now, therefore, if you do not believe beyond a reasonable doubt, that on or about the ___ day of ____, 20__, __________ observed the defendant, _______, commit one or more of the following offenses, to wit: /, or if you have a reasonable doubt thereof, then in your deliberations herein, you will disregard and you will not consider any evidence obtained by the said officer as a result of his detention of the defendant, including any observations made by said officer after said detention, any testimony regarding tests administered to the defendant after said detention, any statements made by the defendant after said detention, the videotape introduced as State’s Exhibit Number ___ , the results of any breath test administered to the defendant, or any other evidence obtained after defendant was detained.

DEFENDANT’S REQUESTED SPECIAL INSTRUCTION NUMBER ____

Defendant respectfully moves the Court to include in the Court’s

Charge to the jury, the following instruction, to wit:

You are instructed that Texas law provides that any evidence obtained by an officer in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States Of America, shall be disregarded by the jury on the trial of any criminal case.

You are further instructed that it is a violation of the Constitution of the State of Texas and of the Constitution of the United States of America for an officer to stop or detain a motorist unless the officer has probable cause to believe, or a reasonable suspicion, supported by specific articulable facts, that the motorist is committing or has committed an offense.

A motorist commits an offense if the motorist, (1) while driving in a lane designated as a “turn only lane”, drives into or across an intersecting roadway instead of turning as required, or (2) while driving on a roadway divided into two or more clearly marked lanes, moves from one lane to another without first signaling his intent to change lanes by using the hand and arm or by lighting the appropriate signal lamp, or (3) while driving on a roadway divided into two or more clearly marked lanes, moves from one lane to another unless that movement can be made safely.

Now, therefore, unless you find from the evidence beyond a reasonable doubt, that on or about the ___ day of _______, 20__, officer, __________ observed the defendant, __________, commit one or more of the traffic offenses listed in the preceding paragraph, or if you have a reasonable doubt thereof, then in your deliberations herein, you will disregard and you will not consider for any purpose, any evidence obtained by said officer as a result of his detention of the defendant, including any observations made by said officer after said detention, any testimony regarding tests administered to the defendant after said detention, any statements made by the defendant after said detention, the videotape introduced as State’s Exhibit Number ___ , the results of any breath test administered to the defendant, or any other evidence obtained after the defendant was detained.

DEFENDANT’S REQUESTED SPECIAL INSTRUCTION NUMBER (Illegal Detention)

You are instructed that Texas law provides that, no evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be considered by the jury in a criminal case in arriving at a verdict. Evidence obtained by a police officer as the result of a detention of an individual is obtained in violation of the state and federal constitutions, if the officer did not have legal justification to detain that individual.

An officer, who has probable cause to believe that a motorist is committing or has committed a traffic violation, is legally justified in detaining said motorist. Probable cause exists when the facts and circumstances then known to the officer, or of which the officer has reasonably trustworthy information, warrant a reasonable belief that the person is committing or has committed an offense.

Now, therefore, if you find from the evidence that at the time Officer \ stopped the vehicle then being driven by the defendant, he did not have probable cause to believe that the defendant had committed the traffic offense of \, or if you have a reasonable doubt thereof, then in arriving at your verdict you will disregard and will not consider any evidence obtained by said officer after the defendant’s vehicle was stopped, including any observations made by said officer after said detention, any testimony regarding tests administered to the defendant after said detention, any statements made by the defendant after said detention, the videotape introduced as State’s Exhibit Number , the results of any breath test administered to the defendant, or any other evidence obtained after defendant’s vehicle was stopped.

Where an issue has been raised by the evidence that the Defendant’s conduct was the result of insanity the following instruction may be requested:

DEFENDANT’S REQUESTED INSTRUCTION NUMBER 2 (Probable Cause)

You are instructed that under Texas Law it is a defense to prosecution that, at the time of the conduct charged, the defendant, as a result of involuntary intoxication, was temporarily insane. Intoxication is involuntary if the defendant exercised no independent judgment or volition in taking or consuming the substance which caused the intoxication. Temporary insanity exists when, because of involuntary intoxication, the defendant is incapable of conforming his conduct to the requirements of the law he allegedly violated.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, but your further find from the evidence that on the occasion in question, the defendant’s intoxication, if any, was involuntary, as that term has been defined herein, and that as a result of said involuntary intoxication, the defendant was incapable of conforming his conduct to the requirements of the law that he is alleged to have violated, or if you have a reasonable doubt as to whether or not the defendant was temporarily insane as a result of involuntary intoxication, you must acquit the defendant and say by your verdict “not guilty”.

DEFENDANT’S REQUESTED INSTRUCTION NUMBER ___

You are instructed that under Texas Law it is an affirmative defense to prosecution that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Under our law the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.

The term "preponderance of the evidence" means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, nevertheless, you must acquit the defendant if you further find by a preponderance of the evidence that at the time he engaged in said conduct, if he did, the defendant, \, as a result of a severe mental disease or defect, did not know that his conduct was wrong.

AUTHORITY: TEXAS PENAL CODE, SECTION 8.01(a).

One should also note that Texas Penal Code § 8.04 provides that although voluntary intoxication is not a defense to the commission of a crime, evidence of temporary insanity may be introduced to mitigate punishment.

Where an issue of necessity has been raised by the evidence the following instruction may be requested:

DEFENDANT’S REQUESTED INSTRUCTION NUMBER _____

You are instructed that under Texas Law it is a defense to prosecution that the conduct in question is justified under Chapter 9 of the Texas Penal Code.

Under Section 9.22 of the Texas Penal Code conduct is justified if:

1. The defendant reasonably believes the conduct is immediately necessary to avoid imminent harm; and

2. The desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct charged.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, but you further find from the evidence that the defendant drove or operated the motor vehicle because he reasonably believed that said conduct was immediately necessary to avoid imminent harm, and that the desirability and urgency of avoiding said harm, if any, outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the driving or operating of an automobile while intoxicated, or if you have a reasonable doubt as to whether or not the defendant’s conduct in driving and operating his motor vehicle while intoxicated was so justified under the circumstances then existing, then you will acquit the defendant and say by your verdict “not guilty”.

AUTHORITY: TEXAS PENAL CODE, SECTION 9.22

Where an issue has been raised by the evidence that the Defendant’s conduct was the result of temporary insanity the following instruction may be requested: This would be used in addition to any attempt to mitigate punishment as mentioned above.

DEFENDANT’S REQUESTED INSTRUCTION NUMBER ____

You are instructed that under Texas Law a person commits an offense only if he voluntarily engages in the conduct charged.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, nevertheless, you may not convict the defendant unless you further find from the evidence, beyond a reasonable doubt, that the defendant voluntarily engaged in said conduct, if any; and if you have a reasonable doubt as to whether or not the defendant voluntarily became intoxicated, if he did, or a reasonable doubt as to whether or not he voluntarily drove or operated a motor vehicle on the occasion in question, you will acquit the defendant and say by your verdict “not guilty”.

AUTHORITY: TEXAS PENAL CODE, SECTION 6.01(a)

Where an issue has been raised by the evidence that the Defendant’s conduct was voluntary the following instruction may be requested:

.

DEFENDANT’S REQUESTED INSTRUCTION NUMBER _____(Voluntary Conduct A)

You are instructed that under Texas Law a person commits an offense only if he voluntarily engages in the conduct charged.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, nevertheless, you may not convict the defendant unless you further find from the evidence, beyond a reasonable doubt, that on the occasion in question the defendant voluntarily drove or operated a motor vehicle; and if you have a reasonable doubt as to whether or not the defendant voluntarily drove or operated a motor vehicle on the occasion in question, you will acquit the defendant and say by your verdict “not guilty”.

AUTHORITY: TEXAS PENAL CODE, SECTION 6.01(a).

DEFENDANT’S REQUESTED INSTRUCTION NUMBER _____(Voluntary Conduct B)

You are instructed that under Texas Law a person commits an offense only if he voluntarily engages in the conduct charged.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of January, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, nevertheless, you may not convict the defendant unless you further find from the evidence, beyond a reasonable doubt, that the defendant voluntarily engaged in said conduct, if any; and if you have a reasonable doubt as to whether or not the defendant voluntarily engaged in said conduct, if any, you will acquit the defendant and say by your verdict “not guilty”.

AUTHORITY: TEXAS PENAL CODE, SECTION 6.01(a).

DEFENDANT’S REQUESTED INSTRUCTION NUMBER _____ (Voluntary Conduct B)

You are instructed that under Texas Law a person commits an offense only if he voluntarily engages in the conduct charged.

Now, therefore, you are instructed that if you find from the evidence, beyond a reasonable doubt, that on or about the \ day of \, 199\, the defendant, \, did drive or operate a motor vehicle in a public place, in \ County, Texas, while intoxicated, as alleged in the information, nevertheless, you may not convict the defendant unless you further find from the evidence, beyond a reasonable doubt, that on the occasion in question the defendant voluntarily drove or operated a motor vehicle; and if you have a reasonable doubt as to whether or not the defendant voluntarily drove or operated a motor vehicle on the occasion in question, you will acquit the defendant and say by your verdict “not guilty”.