Please check out the new CCA opinion in Gray v. State and let me know what you think.

Gray v State - CCA web version

Here is the basic rundown: D complains that State was allowed to charge jury on synergistic effect of drugs he was taking, despite State alleging in information alcohol only. CCA says the trial court properly allowed conviction on drugs and alcohol and wrote:

"We conclude that the substance that causes intoxication is not an element of the offense. It is not the forbidden conduct, the required culpability, any required result, or the negation of any excepion to the offense. Instead, it is an evidentiary matter. We disavow the dicta in Garcia [v. State, 720 S.W.2d 655] to the contrary."

It strikes me that this means that the State should no longer allege in our DWI charging instruments the manner in which we intend to prove intoxication, because we are not required to plead "evidentiary matters." Does anyone see any up/downside to simply alleging "intoxicated" and leaving it at that?

Note that the CCA gives lip service to the idea that they are not overturning the notice requirement for alleging the definition(s) of intoxication the State seeks to prove as affirmed in Saathoff v. State, 891 S.W.2d 264 (Tex.Crim.App. 1994). But Saathoff specifically talked about the definition of intoxication as "an element of involuntary manslaughter," which they just got done saying it was not.