I have alleged intoxication by "...the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances or any other substance..." and the defense has filed a Motion to Compel Election. He argues that I have to elect before voir dire and I say that I do not have to until we both rest and before the judge charges the jury. Who is right?

My understanding is that you don't have to elect between different manners and means of committing one offense.  Marquez v. State, 725 S.W.2d 217,
239 (Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987).

As for when an election must be made, it *must* be made no later than when the State rests. O'Neil v. State, 746 S.W.2d 769 (TCA 1988). It *can* be required much before that. See Dix & Dawson, 42 Tex. Practice sec 30.64 & 30.65 (2d. ed. 2001).

I'm assuming you have a good-faith basis for charging all the different manners and means. I think a trial court would err if it sent a manner and means to the jury that was not supported by evidence.

Keep in mind that a synergistic charge doesn't have to be pled in the information and might solve a lot your issues. But watch out because they have to be done carefully. See Rodriguez v. State, 18 S.W.3d 228(Tex. Crim. App. 2000). Caveat, after Rodriguez, I wouldn't bet the farm that synergistic charges will be approved of in the future.

Hope this helps.

Check out State v. Torres, 865 S.W.2d 142. I think it is on point--in your favor--at least as to surviving a motion to quash.

[This message was edited by ed klein on 05-23-02 at .]

For years, Gary Trichter and other defense attorneys who specialize in representing DWI defendants have argued that the state has to elect between the different manner and means of being intoxicated. So far, Texas courts have rejected that request, responding that alternate manner or means of intoxication is still intoxication. And, the state can tell a jury that they don't have to unanimously agree as to a particular manner or means of intoxication. They only have to agree the defendant was intoxicated.

Of course, if you fail to offer evidence on a particular manner or means, the judge can instruct you out on that theory. And it shouldn't appear in the jury charge. But, you can certainly start the trial and try the theory.