In McKinnon v. State (Tex. App.--Fort Worth 1986, no pet) McKinnon argued that the trial court had erroneously refused to instruct the jury on involuntary intoxication after she was convicted of the misdemeanor offense of driving while intoxicated.
McKinnon testified that she drank two and one-half glasses of wine in the company of a business customer and his partner and then began to feel "funny" and decided to go home. Id. at 806.
Soon after leaving and while driving her car, she "lost touch with everything" and "blacked out." Id.
McKinnon was arrested with a strong odor of alcohol on her breath after crashing her car into someone's house. She was giggly and crying, appeared unsteady on her feet with bloodshot eyes and slurred speech. a bottle of wine was found on the floor board of the car. Id.
At trial, McKinnon testified that, in her experience, the blackout was not caused by the wine she consumed and that she did not put any drug in her drink. Id.
She stated that one of the men had poured the wine in a room other than the one she occupied and that, if someone had drugged her drink, it was without her knowledge. Id.
McKinnon testified that she would not have conducted herself as the State's witnesses described her conduct as a result of consuming only two and one-half glasses of wine. Id. at 807.
The appellate court disagreed, reasoning that the evidence McKinnon presented did not meet the first prong of Torres v. State (the accused has exercised no independent judgment or volition in taking the intoxicant) and did not support a charge on involuntary intoxication. Id.
Unlike in Torres, in which there was testimony that another person had put a drug into Torres' drink without her knowledge, there was no evidence of any drug being added to McKinnon's wine and no evidence that she did not voluntarily consume the wine. Id.