Joseph Raymond Murphy v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 13, 2023
• Docket: 09-22-00226-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09-22-00226-CR NO. 09-22-00227-CR ________________

JOSEPH RAYMOND MURPHY, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 19-31059 and 19-31060 ________________________________________________________________________

MEMORANDUM OPINION

Appellant Joseph Raymond Murphy was indicted and convicted by a jury of

harassment of a public servant and assault on a peace officer.1 Tex. Penal Code Ann.

§§ 22.11(a)(3), 22.01(a), (b)(1). He was sentenced to concurrent twenty-five and

1 The same City of Beaumont police officer is the complaining witness in both offenses. 1 thirty-four-year terms in the Institutional Division of the Texas Department of

Criminal Justice.2

In his appeal, Murphy contends that the trial court erred in refusing to instruct

the jury regarding involuntary intoxication, and that the State made improper jury

argument during the guilt innocence phase of his trial. Finding no reversible error,

we affirm the trial court’s judgments.

I. Background

Beaumont police officers responded to a report of a naked man behaving in a

belligerent and otherwise inappropriate fashion. When Officer Jonathan Fenner

arrived at the scene, Murphy approached him, spat on him, then punched him.

Officer Fenner’s body camera captured Murphy’s actions. The officers present

immediately tackled Murphy, who was covered in his own blood from having put

his fist through a window. Three officers testified at trial that they believed Murphy

was under the influence of a controlled substance, possibly phencyclidine (PCP), at

the time of the offenses they described.

Murphy argued at trial that he was involuntarily intoxicated when he

committed the offenses charged, and he presented the testimony of an acquaintance,

2 Murphy had three previous criminal convictions used for enhancement purposes. 2 Keith Watson, in support of his defense of involuntary intoxication.3 Watson

confirmed at trial that he had signed a written statement claiming a third party had

given Murphy a “joint” that was “laced” with PCP. 4 The written statement, itself, is

not in evidence. Watson testified in response to defense counsel’s direct questions

about the written statement containing his signature, “Q. What part [of the written

statement] was not there when you signed it? A. We did this without his knowledge,

because I didn’t give him nothing.” Watson denied that he gave Murphy a PCP-laced

“joint.” Instead, Watson testified “That I did see ‘Bam’ give Murphy a joint laced--

a joint. He said it was laced.” He was unable to identify “Bam” and nobody who

claimed to be “Bam” testified at trial. Watson did not testify as to what the joint was

laced with.

II. Analysis

Alleged Failure to Instruct the Jury

Appellate review of a purported jury charge error involves a two-step process.

See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Barron v. State,

353 S.W.3d 879, 883 (Tex. Crim. App. 2011). First, we must determine whether

3 We refer to this witness by a pseudonym to conceal his identity and protect his privacy. See Clark v. State, No. 09-21-00334-CR, 2022 Tex. App. LEXIS 5957, *1 n.1 (Tex. App.—Beaumont Aug. 17, 2022, no pet.) (mem. op., not designated for publication). 4 In this context, we interpret Watson’s testimony to mean that Murphy was given marijuana that contained another drug, presumably phencyclidine. 3 error exists and, second, we must determine whether sufficient harm resulted from

the error to warrant reversal. See Barron, 353 S.W.3d at 883 (citing Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)); see also Price v. State,

457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If no error occurred, our analysis ends.

See Kirsch, 357 S.W.3d at 649. Whether the error was preserved in the trial court

determines the degree of harm required for reversal on appeal. Marshall v. State, 479

S.W.3d 840, 843 (Tex. Crim. App. 2016); Villarreal v. State, 453 S.W.3d 429, 433

(Tex. Crim. App. 2015) (citing Almanza, 686 S.W.2d at 171). If error was preserved

by objection at trial, to obtain a reversal it requires a showing of “‘some harm[.]’”

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (quoting Almanza, 686

S.W.2d at 171). If the error was not preserved by objection at trial, to obtain a

reversal it requires proof of fundamental harm that was “so egregious and created

such harm that the defendant was deprived of a fair and impartial trial.” Villarreal,

453 S.W.3d at 433.

In assessing the degree of harm, we must consider the entire jury charge, the

evidence, the argument of counsel, and any other relevant information revealed by

the record. Almanza, 686 S.W.2d at 171. We examine the charge in its entirety rather

than a series of isolated statements. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim.

App. 1989); Iniguez v. State, 835 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.]

1992, pet. ref’d). “[E]gregious harm is a difficult standard to prove and such a

4 determination must be done on a case-by-case basis.” Taylor v. State, 332 S.W.3d

483, 489 (Tex. Crim. App. 2011) (internal quotations omitted). “Errors which result

in egregious harm are those that affect the very basis of the case, deprive the

defendant of a valuable right, vitally affect the defensive theory, or make a case for

conviction clearly and significantly more persuasive.” Id. at 490.

We review a trial court’s refusal to include a defensive issue in the charge for

an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.

2000). Involuntary intoxication is an affirmative defense. Tex. Penal Code Ann. §

8.01(a) (“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.”); Mendenhall v. State, 77 S.W.3d 815, 817-18 (Tex. Crim.

App. 2002) (stating it is an affirmative defense to prosecution that the defendant did

not know his conduct was wrong at the time of offense because of severe mental

defects caused by involuntary intoxication).

To preserve a complaint for appellate review, the record must show that the

appellant made a timely request, objection, or motion to the trial court. In addition,

that request, objection, or motion must be sufficiently specific to apprise the trial

court of the complaint. Tex. R. App. P. 33.1(a)(1)(A). A jury instruction on a

defensive issue is not considered the “law applicable to the case” unless the

defendant requests its inclusion or objects to its omission. See Tolbert v. State, 306

5 S.W.3d 776, 779-80 (Tex. Crim. App. 2010). The requesting party must either object

to its omission or have requested the instruction. Counsel for Murphy asked the trial

court to instruct the jury about “involuntary intoxication.” The court denied his oral

request for an instruction on “involuntary intoxication.”

Assuming that Murphy properly requested a jury instruction on involuntary

intoxication, thus preserving his appellate complaint, we hold that the trial court

correctly denied that instruction because it was not raised by the evidence. See

Collins v. State, No. 02-18-00449-CR, 2019 Tex. App. LEXIS 8026, at **6-7, (Tex.

App.—Fort Worth Aug. 30, 2019, no pet.) (mem. op., not designated for publication)

(holding that the defendant ingesting an unknown medication that he believed was

hydrocodone, even if it is not hydrocodone, does not constitute involuntary

intoxication) (citing Farmer v. State, 411 S.W.3d 901, 913 (Tex. Crim App. 2013)

(Cochran, J., concurring) (Courts have recognized that a person’s intoxication can

be involuntary when the intoxication arises because of (1) the fault of another, such

as through force, duress, or fraud; (2) the person’s own accident, inadvertence, or

mistake; (3) a physiological or psychological condition beyond the person’s control;

or (4) a medically prescribed drug that causes unexpected side effects). The evidence

before the trial court suggests that Murphy’s voluntary marijuana use may have

exposed him to an additional illegal drug that he may not have intended to use.

Watson’s testimony that Murphy had been given a “joint” that was “laced” [with an

6 unidentified drug] supports this interpretation of the evidence, as does the officers’

testimony about Murphy’s mental state. The evidence does not, however, imply that

Murphy ingested the “laced” marijuana involuntarily. Nor does the evidence show

that Murphy did not know right from wrong. The evidence shows that Murphy

voluntarily took and smoked the marijuana cigarette. See Collins, 2019 Tex. App.

LEXIS 8026, at **6-7, and see Ramsey v. State, No. 10-19-00284-CR, 2021 Tex.

App. LEXIS 7034, at **6-7, (Tex. App.—Waco Aug. 25, 2021, pet. ref’d, PD-0675-

21, In re Ramsey, 2021 Tex. Crim. App. LEXIS 966 (Tex. Crim. App., Oct. 6, 2021)

(Ramsey claimed an individual, identified only as “Tee,” smoked marijuana with

him that he thought was just “regular weed” but later he realized it contained “K2”

[an intoxicant] which caused him to become “buck naked, foaming at the mouth,

vomiting, and swinging his arms like he was fighting demons[]” when he fired

twenty rounds from a rifle at his girlfriend who was fleeing the scene in a vehicle).

Therefore, the trial court reasonably concluded there was no evidence that Murphy’s

intoxication was involuntary.

Murphy does not contend that he did not voluntarily use the illegal marijuana

containing the alleged additional intoxicant and he does not contend he didn’t know

right from wrong when he assaulted Officer Fenner. Intoxication is involuntary if

the defendant exercised no independent judgment or volition in taking the

intoxicant. See Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979);

7 Ramsey, 2021 Tex. App. LEXIS 7034, at *6. Here, defendant does not claim he

exercised no independent judgment or volition in smoking the marijuana, he merely

claims he just did not know the marijuana was laced with PCP. Because the

evidence, even when viewed in the light most favorable to the defendant, does not

establish the defense of involuntary intoxication, an instruction was not required. See

Ramsey, 2021 Tex. App. LEXIS 7034, at *6-7. The record shows that Murphy

voluntarily smoked marijuana and even if he did not know the marijuana was laced

with something else, he was not entitled to an instruction on involuntary

intoxication. See Farmer, 411 S.W.3d at 908; see also Collins, 2019 Tex. App.

LEXIS 8026, at **7-8 (defendant ingesting an unknown medication that he believed

was hydrocodone, even if it is not hydrocodone, does not constitute involuntary

intoxication). Therefore, the trial court properly denied the instruction Murphy

sought. We overrule issue one.

Improper Argument

In his second issue, Murphy contends that the trial court committed reversible

error by permitting the State to argue punishment during the “guilt/innocence phase”

of the trial.

Proper jury argument generally falls within one of the following four

categories: (1) summation of the evidence; (2) reasonable deduction from the

evidence; (3) response to argument of opposing counsel; or (4) plea for law

8 enforcement. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992) (citations

omitted). An instruction to disregard improper remarks will normally cure the error,

unless “‘in light of the record as a whole it was extreme or manifestly improper,

violative of a mandatory statute, or injected new facts harmful to the accused,’” in

which case, the error is reversible. Cooks, 844 S.W.2d at 727.

The State allowed Murphy to address the jury first during closing argument

so Murphy’s counsel argued first. Among other things, Murphy’s counsel addressed

the issues surrounding Murphy’s mental state at the time of the offense:

You heard the officers’ testimony as to his behavior. If someone is unaware of what’s going on around them, how can they form a conscious objective? How can they be aware of what their conduct might result in? Obviously, it’s not normal for someone to be walking around bloody from having punched through a window. A normal person, someone in their right mental state, would have never punched through a window in the first place, especially a windshield, and then they would have sought help when they are dripping blood.

During its closing argument, in response to the argument of Murphy’s

counsel, the State made the following statement: “If you want to take his intoxication

into effect, take it into effect on punishment. That’s what that’s for, to look at

mitigation to maybe lower his punishment[.]” Murphy objected to this reference to

punishment, and the trial court instructed the jury as follows:

THE COURT: It’s been alluded to by both parties during final argument and you’ve made an objection to the statement just made by the prosecutor and the law is concrete. Section 8.04 of the Texas Penal Code provides that voluntary intoxication does not constitute a defense to the commission of a crime. Evidence of temporary insanity caused 9 by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

Does everybody understand the Court’s additional instructions to the jury based upon the arguments made by counsel? So that the jury understands where the proper placement is for such evidence, it is not in the first phase of the trial. It may be included in the second phase. Proceed.

The defense does not complain about the trial court’s instructions to the jury.

We assume the jury followed the instructions of the trial court. Luquis v. State, 72

S.W.3d 355, 366-67 (Tex. Crim. App. 2002). The State’s attorney again referenced

the punishment phase of trial when it finished its closing when he stated, “I ask you

to find him guilty, and we’ll move on to the punishment phase.” Murphy did not

object to this second punishment reference. We cannot say that the complained of

statements were outside the bounds of proper jury argument, and we find the

arguments consistent with the instructions given to the jury by the trial court.

Further, even assuming without deciding that such statements were outside

the scope of proper argument, we find any such error was harmless. Martinez v.

State, 17 S.W.3d 677, 692-94 (Tex. Crim. App. 2000) (applying harmless error rule

to overruling of objections to jury argument). The evidence of guilt was substantial,

the trial court promptly instructed the jury on the law, and based on the entire record

we find any prejudice to Appellant was minimal and had no effect on the verdict.

See generally Harris v. State, 122 S.W.3d 871, 886-87 (Tex. App.—Fort Worth

2003, pet. ref’d) (explaining that an appellate court will examine the entire record as 10 whole to determine whether “the argument had a substantial and injurious effect or

influence on the jury’s verdict[]”); see also Espinoza v. State, No. 03-02-00339-CR,

2003 WL 21939042, at *2 (Tex. App.—Austin Aug. 14, 2003, no pet.) (mem. op.)

(not designated for publication).

We overrule issue two. Having overruled both of Murphy’s issues, we affirm

the trial court’s judgments.

AFFIRMED.

JAY WRIGHT Justice

Submitted on July 27, 2023 Opinion Delivered September 13, 2023 Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.