Frias v. State

775 S.W.2d 871, 1989 Tex. App. LEXIS 2454, 1989 WL 108035
CourtCourt of Appeals of Texas
DecidedAugust 31, 1989
DocketNo. 2-88-180-CR
StatusPublished
Cited by8 cases

This text of 775 S.W.2d 871 (Frias v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frias v. State, 775 S.W.2d 871, 1989 Tex. App. LEXIS 2454, 1989 WL 108035 (Tex. Ct. App. 1989).

Opinion

OPINION

HILL, Justice.

Rudy Frias appeals from his conviction by a jury of the offense of aggravated sexual assault. The jury assessed his punishment at twenty-five years in the Texas Department of Corrections. In five points of error, Frias urges that the trial court erred in refusing, at the punishment stage of the trial, his requested charge on voluntary intoxication, and that the court erred in overruling his objections that arguments of the prosecutor: (1) commented on his failure to testify; (2) were unsworn testimony of the prosecutor; (3) were personal opinion of the prosecutor; and (4) were unsupported by the record.

We affirm, because we find that although the trial court erred by not submitting a charge on voluntary intoxication at the punishment stage of the trial, since there was some testimony that, as a result of intoxication, Frias did not know that what he was doing was wrong, the trial court’s failure was harmless beyond a reasonable doubt. We further find that certain arguments of the prosecutor did not constitute a reference to Frias’ failure to testify, did not constitute unsworn testimony, and that another argument was supported by the evidence.

Frias attacked N.V. at her home while her husband was away. He forcibly took her to an abandoned apartment, where he sexually assaulted her. When Frias took her home, N.V. ran to her husband and to her father, both of whom had been searching for her, and told them that Frias had raped her.

In point of error number one, Frias contends that the trial court erred in refusing his properly requested charge on voluntary intoxication at the time of the offense. At the punishment stage of the trial, Frias testified that he was under the influence of “some kind of a drug” at the time of the assault. He said that at the time of the assault he had been drinking and doing cocaine, and that the drinking and cocaine use affected him a great deal. He said that the cocaine made things seem unreal, that he did not know what he was doing, and that he did not realize what was happening. He did not specifically testify that he did not know what he was doing was wrong. The trial court overruled Frias’ requested instruction on voluntary intoxication and overruled his objection to the failure to include such an instruction.

Sections 8.04(a) and 8.04(b) of the Texas Penal Code provide that voluntary intoxication is not a defense to crime but that evidence of such intoxication may be introduced by the actor in mitigation of the punishment. Section 8.04(c) of the Texas Penal Code provides that when temporary insanity is relied on as a defense and the [873]*873evidence tends to show that the insanity was caused by intoxication, the court is to charge the jury in accordance with the provisions of section 8.04. Section 8.01(a) of the penal code provides that it is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Sections 8.01(a) and 8.04, considered together, require that a defendant, in order to be entitled to a charge under section 8.04, must show that, as a result of intoxication, he did not know that his conduct was wrong. See Hart v. State, 537 S.W.2d 21, 24 (Tex.Crim.App.1976). We find that Frias’ testimony that the cocaine made things seem unreal, that he did not know what he was doing, and that he did not realize what was happening was sufficient to entitle him to an instruction on voluntary intoxication at the punishment stage of his trial. Although he did not specifically testify that he did not know that what he was doing was wrong, if he were so intoxicated that the situation seemed unreal, and if he were so intoxicated that he did not know what he was doing or realize what was happening, it follows that he was so intoxicated as to not know that his conduct was wrong because he could not have known that his conduct was wrong if he did not know what his conduct was. We therefore find this to be some testimony raising the issue of temporary insanity caused by voluntary intoxication.

The State relies on the cases of Hart, 537 S.W.2d at 21 and Madden v. State, 628 S.W.2d 161, 162 (Tex.App. — Eastland 1982, pet. ref d). We find those cases to be distinguishable. In Hart, the defendant testified that he did not remember what he did, and a friend testified that when the defendant “gets to drinking a lot of times, he doesn’t know what he is doing.” Hart, 537 S.W.2d at 23. The court held that such testimony did not raise the issue that the defendant did not know his conduct was wrong on the occasion in question. Id. at 24. The court also said that the testimony that the defendant did not remember what he did was insufficient to require the instruction. Id. We believe the court reached that conclusion because the friend’s testimony did not establish that Hart did not know that his conduct was wrong or did not know what he was doing on the particular occasion for which he was being tried. The friend’s testimony, if believed, only established that Hart did not know what he was doing on certain occasions. The friend did not express an opinion as to whether Hart knew what he was doing on the occasion in question, if in fact he would have been able to express such an opinion. Hart’s testimony that he could not remember what he did is not the same as testimony that he did not know what he was doing at the time he did it, or that he did not know that what he was doing was wrong. In Madden, as in Hart, the defendant could not remember everything he did. Madden, 628 S.W.2d at 162. The court of appeals, relying on Hart, held that evidence that the defendant did not remember what happened was insufficient to require the voluntary intoxication charge. Id. In this case, as we have noted, Frias testified that because of his drug use things seemed unreal, that he did not know what he was doing on the occasion in question, and that he did not realize what was happening. We believe that such testimony could support a reasonable conclusion that, as a result of intoxication, he did not know that his conduct was wrong on the occasion in question.

The State urges that even if it were error to omit the requested charge, that the error was harmless. We agree. The jury received evidence of Frias’ intoxication. The court instructed them that they could consider all of the evidence in reaching a determination as to Frias’ punishment. Frias’ attorney argued to the jury without objection and without contradiction that the law allowed them to consider Frias’ intoxication as mitigation of his punishment. The jury assessed punishment at twenty-five years out of a possible maximum punishment of ninety-nine years or life. We find beyond a reasonable doubt that the trial court’s failure to give an instruction on the jury’s right to consider Frias’ intoxication in mitigation of his punishment was [874]*874harmless. We overrule point of error number one.

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Bluebook (online)
775 S.W.2d 871, 1989 Tex. App. LEXIS 2454, 1989 WL 108035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frias-v-state-texapp-1989.