I picked up a case and went to trial today on a blood test. The information only alleges loss of normal use. No objection from the defense so far to the discussions about the blood test in voir dire, opening, etc. Tomorrow we will get to the medical tech, chemist, etc for the actual results.

Question: is there any chance of me charging the jury on a definition of intoxication that includes being over the limit?

In this particular case, the guy looks decent on video so I'm not going to have much luck getting this jury to believe that having a .11 necessarily means he lost the normal use of his faculties.

Need answer by morning of July 23 (Friday). Please post answer here *AND* email me georgettestovall@yahoo.com.

THANKS.

Your information sets the limits for what you can plead in the jury charge. You can't convict a defendant for conduct that you have not alleged in the charging instrument.

Basic fairness (not to mention state and federal constitutional provisions, state statute, and numerous appellate cases) dictates that a criminal defendant receive written notice of what he faces in trial.

So, your evidence of intoxication may include evidence from any relevant source, including the results of a blood test. But, in the absence of an information warning the defendant that his intoxication met the standards set by the Penal Code's minimum blood/alcohol concentration, you can't include that theory in the jury charge.

One has to wonder who screened the case and failed to allege both theories. A mighty important lesson to every prosecutor that you should read the charging instrument and prepare a jury charge in advance of trial. Amazing what you can see wrong in your case that way.

But, since the defense often argued (erroneously)that a test result of less than .10 meant not intoxicated, I see no reason why you could not point out in argument the legislatively noticed fact that .08 or higher has been chosen as another standard for intoxication (presumably likewise related to loss of use) or could not offer expert testimony as to motor skills/reaction time/etc. of someone with a .11. Isn't the other definition almost like a prima facie speed limit? The jury cannot be charged or permitted to convict on that theory (directly), but does that mean utilizing it in argument is improper? I know the answer Judge Price would give to this argument based on his opinion in Stewart, but I am not convinced the test result lacks relevance. See Daricek, 875 S.W.2d at 773.

[This message was edited by Martin Peterson on 07-22-04 at .]

I agree with John... that's my bad for agreeing to pick up a case and run with it. (I'm a new hire for Williamson County and sad to say, my predecessor seems to have missed this.)

But here's what I've learned. Solis v. State 787 SW2d 388 (CCA 1990) says the defendant's conduct in a DWI is what intoxicant you're relying on... alcohol, drugs, etc. That's all you have to plead in the information. You do not need to plead which definition you intend to rely on at trial, since that is evidentiary.

"Thus, if the applicability of one or more statutory alternatives hinges upon which of a group of acts a defendant committed, the alternative must be plead. If, however, the application of various alternatives are equally applicable to conduct that the defendant is alleged to have committed, the alternatives need not be plead. ... Because the methods of proving intoxication by alcohol are set out statutorily and do not depend on any conduct committed by the defendant, other than introduction of alcohol into the body-- which was already alleged, the State need not specify in the charging instrument whether it will use loss of faculties or alcohol content to prove the offense. This charging instrument gave appellant full notice of all acts he was accused of committing. We hold that a charging instrument that alleges driving while intoxicated, when intoxication is by means of introduction of alcohol into the body, need not further allege whether proof will be by loss of faculties or by alcohol content."

Defense counsel never objected, the test results were admitted, and the jury was charged without objection on all definitions of intox (loss of normal use as well as .08).

However to forstall potential appeal grounds, I scrupulously avoided arguing anything about the blood test as intoxication per se... instead I consistently pointed to the evidence of loss of normal use, and then to every excuse postulated by the defense, I pointed at the blood test as proof that alcohol was present in sufficient quantity to have caused that loss of normal use.

Hopefully there is no habeas proceeding on an IAC claim.

g

Well...? Don't leave us guessing!

I was at the juvenile law conference in Austin, and just read this, but FYI: that language from Solis was overruled in State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1990); 41 Tex. Practice sec. 20.314. A DWI information that does not list one or both of the ways of being intoxicated is vulnerable to a motion to quash.

For cases considering the combined submission of invalid and valid theories you might look at: Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) (general verdict might have been based on theory that was barred by the merger doctrine); Lopez v. State, 697 S.W.2d 761
(Tex.App. 13 Dist. 1985) (no egregious harm in general verdict since there was no evidence to support conviction on unpled theory).

Guilty, 10 minutes.

Thanks for the tip on Carter because the Lexis shep didn't show anything about it. I'll have to read Carter and see if it completely vitiates my argument.

Thanks all!

Having read Carter now I wonder whether there's a difference between what the State must allege "upon timely request by the Defendant"/"in the face of a motion to quash" and what the State must allege when the Defendant doesn't say anything about the complaint.

I just read this case Hamlin v. State, 902 S.W.2d 613 (Tex.App.-Houston [1 Dist.],1995, no pet.) ("Here the State alleged intoxication by the loss of normal use of mental and physical faculties. The State was not entitled to convict or punish appellant*618 for intoxication via the .10 alcohol concentration definition.")

Yeah, but having read Hamlin, I think it assumes that the conduct committed by the defendant is the >.08 vs. loss of normal use, where Solis says (the following year) that the only conduct is the alcohol vs. drugs bit. So I think it's arguably overruled by Solis.

Still-- best to plead both definitions especially when we actually have a blood test!

Yikes!

This opinion has a long discussion about this issue.

Skip to the bottom of page 300 to the paragraph that begins "In his third point, appellant contends [...]"

Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth Sep 20, 2001) (NO. 2-00-253-CR), rehearing overruled (Oct 25, 2001), petition for discretionary review refused (May 08, 2002)

-- EDIT ----

Actually this opinion is more about limiting the Carter logic to the complaint & information... refusing to apply that logic to the jury charge. The two definitions are separate for notice purposes only... they are not separate offenses.

[This message was edited by AlexLayman on 07-28-04 at .]