¶1concurring.
¶2As I understand its opinion, the majority essentially holds that an instruction on voluntary intoxication at the guilt or innocence phase of trial is not limited to cases in which temporary insanity is relied upon as a defense, but is appropriate any time the evidence raises an issue whether an accused was intoxicated at the time of the offense to the degree that it may have been a causal factor, and the evidence raises an issue whether his intoxication was voluntary. I agree.
¶3Under V.T.C.APenal Code, § 8.04(a), voluntary intoxication is not a defense to crime. Under § 8.04(b), however, if intoxication causes a state of temporary insanity, and an offense is committed while in that state, such temporary insanity caused by intoxication, although not an excuse for commission of the crime, may be considered by the factfinder in mitigation of punishment. Now we come to subsection (e) of § 8.04, supra. This provision reads:
“(c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.”
¶4Appellant contends it was error for the trial court to instruct the jury under § 8.04(a), that voluntary intoxication is not a defense, at the guilt phase of the trial, because she did not rely upon temporary insanity as a defense at that stage of trial. As I understand it, she contends that § 8.04(c) acts as a limitation, permitting a § 8.04(a) instruction to be given only when the defendant meets his burden of production to show the affirmative defense of insanity and there is also evidence from which the jury could conclude that his insanity was caused by voluntary intoxication.
¶5The majority rejects this contention, and I think correctly so. In essence the majority holds that while a voluntary intoxication instruction is mandated under the circumstances described in subsection (c) of § 8.04, the submission of such an instruction is not confined to those circumstances. Indeed, Article 36.14, V.A.C.C.P., requires the trial court to charge the jury “distinctly” on every aspect of “the law applicable to the case[.]” That means, consistent with subsection (a) of § 8.04, that whenever the evidence raises an issue whether the accused was voluntarily intoxicated at the time he committed the offense, an instruction to the jury that his voluntary intoxication does not excuse his conduct would be appropriate, irrespective of whether the evidence suggests his level of intoxication was such as to have produced a state of temporary insanity. In short, § 8.04(c) was meant to limit the affirmative defense of insanity, and it does so on its face. It was not also meant to limit the State’s entitlement to an instruction pursuant to § 8.04(a) that intoxication-less-than-insanity is not an excuse to crime.
¶6With this brief amplification, I join the majority opinion.