By Richard Guerra
Assistant Criminal District Attorney in Bexar County
The charge conference is a precarious part of trial because an unobjected-to jury charge error can tank a prosecutor’s case. Making matters worse, the judge, attorneys, and court staff are often exhausted from the preceding stages of trial. The advancing light at the end of the trial tunnel can cause a court and attorneys to rush through the charge conference to get to the excitement of closing arguments. Indeed, the charge conference is dangerous. And the Fourteenth Court of Appeals’ opinion in Bacon v. State demonstrates why this is so.
Background
It’s 3:00 a.m. Dogwatch.
Kevin Bacon[1] is speeding. He’s had five mixed drinks. He moves across lanes without signaling. Officer Younger lights him up and pulls him over. The officer approaches Bacon’s vehicle and smells alcohol. There’re other signs of intoxication too. Bacon’s eyes are yellow, glassy, and hooded. He slurs his speech. Empty alcohol containers litter the front and rear passenger floorboards. Bacon tells Officer Younger that he’s had five mixed drinks. His performance of each of the standardized field sobriety tests indicates that he’s intoxicated. Officer Younger arrests him on suspicion of driving while intoxicated (DWI).[2]
After putting Bacon in the back of his patrol car, Officer Younger makes an inventory of Bacon’s vehicle. A backpack on the rear passenger floorboard contains an open alcoholic beverage. It also contains a grinder with a substance that is this case’s focus. Officer Younger believes that this substance is synthetic marijuana based on its odor, appearance, and texture. He explains that he’s encountered synthetic marijuana a few times before. The substance in the grinder is not tested.
Bacon consents to providing a blood sample, which places his blood alcohol concentration at 0.162. Bacon’s blood is not tested for other drugs. Fast-forward to trial. The court overruled Bacon’s objections to the body-worn camera (BWC) footage of the substance’s discovery and Officer Younger’s testimony that he believed the substance was synthetic marijuana.[3] The jury charge included the entire statutory definition of “intoxicated”:
“Intoxicated” means either: 1) not having the normal use of mental or physical faculties by reason of 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 into the body; or 2) having an alcohol concentration of 0.08 or more.[4]
Bacon didn’t object to the charge. The jury convicted him of DWI.
On appeal, Bacon argued 1) the trial court erred by permitting the State to introduce the evidence concerning the substance and 2) the jury charge erroneously included the entire definition of intoxicated when the evidence established that Bacon’s intoxication was caused solely by alcohol.[5]
Ultimately, the Fourteenth Court of Appeals court sustained Bacon’s second issue and reversed the trial court’s judgment. Let’s examine how the Court reached its conclusion.
Issue 1: the substance
The Court first recalled that Texas Rule of Evidence 404(b) excludes extraneous offense evidence to prove a defendant’s character to show that the defendant acted in conformity with that character. However, the court acknowledged that this evidence can be admitted as same-transaction character evidence.
According to the Court, same-transaction character evidence “illuminates the nature of the crime alleged” so that the charged offense would make little sense without it. Thus, same-transaction character evidence puts the charged offense in context. The Court cited Mayes v. State for the two-pronged “Mayes test” to determine whether the evidence was admissible as same-transaction character evidence.[6]
For the first prong, the Court determined that the evidence was relevant under Texas Rule of Evidence 401. Although the Court acknowledged that the evidence that Bacon was intoxicated by synthetic marijuana was “undeniably scant,” the Court also recalled that the definition of “intoxication” focuses on the state of the intoxicant rather than on identifying the intoxicant. Thus, proof of the exact intoxicant is not an element of the offense.
The Court next addressed the second prong: whether the evidence was properly admitted as an exception under Rule 404(b) or as same-transaction contextual evidence. According to the Court, the evidence regarding the substance completed the narrative of the events surrounding the charged conduct because it gave the jury the full context of Bacon’s behavior at the time of the offense. The Court added that excluding this evidence would have left the jury with an incomplete and potentially misleading account of the circumstances that led to Bacon’s arrest and the subsequent inventory search. And Officer Younger’s testimony about what he found was admissible because the inventory search was lawful.[7]
Lastly, the Court conducted a Rule 403 analysis to determine whether the substance’s probative value was substantially outweighed by unfair prejudice. After pointing out that same-transaction contextual evidence is almost always admissible, the Court laid out the analysis under Texas Rule of Evidence 403, which requires courts to balance:
1) the strength of the evidence in making a fact more or less probable;
2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way;
3) the amount of time the proponent needed to develop the evidence; and
4) the strength of the proponent’s need for this evidence to prove a fact of consequence.[8]
The Court found that the substance’s probative value was substantial because it gave the jury “a more complete understanding of the circumstances surrounding [the] appellant’s condition and behavior at the time of arrest, as well as the rationale for the vehicle search that followed.”[9] The Court also found that the substance was not likely to irrationally or indelibly impress the jury because the testimony regarding the substance was limited to Officer Younger’s belief that it was synthetic marijuana. There was no laboratory testing or other evidence that linked the substance to Bacon’s intoxication, nor did the State suggest it—the State did not spend significant time developing the evidence. Consequently, the substance “served only a peripheral and explanatory purpose and was not of a nature likely to inflame or prejudice the jury.”[10]
Having held that the substance was same-transaction contextual evidence and that it was not unfairly prejudicial, the Court moved on to the next issue.
Issue 2: the jury charge
The Court’s holding on this issue focused on this case’s similarity to Burnett v. State, where the Court of Criminal Appeals ruled that, in a DWI trial, the trial judge must submit to the jury only the parts of the definition of “intoxicated” supported by the evidence.[11] In Burnett, the police officer found pills that he believed were hydrocodone. But the defendant never directly said that the pills were hydrocodone, nor was there any evidence of what hydrocodone is, whether it could produce intoxicating effects, or whether pills caused the defendant’s symptoms of intoxication. The Court of Criminal Appeals held that the trial court erred in putting the entire definition of intoxication in the jury charge.[12] Likewise, the Bacon Court held that the trial court erred by including the whole definition of “intoxicated” in its jury charge.[13]
The Court also contrasted this case with Oullette v. State, in which the Court of Criminal Appeals upheld a jury charge that contained the entire definition of intoxication—including the mention of a controlled substance, a drug, or dangerous drug—because the defendant admitted that one of the pills was Soma, which is a central nervous system depressant. Even though the Oullette defendant told the officer that she hadn’t taken the pills in a month, there was still some evidence that linked the pills to the defendant’s intoxication.[14] Unlike the evidence in Oullette, there was no evidence that Bacon had used the substance and no evidence that the substance could cause any of the intoxicating effects that he exhibited.[15]
Because Bacon didn’t object to the charge, the Court considered whether this error caused egregious harm under Almanza v. State. The Court reasoned that the entire charge weighed in favor of egregious harm because it permitted the jury to convict Bacon under an evidentiarily unsupported theory. Although the Court recognized that the evidence overwhelmingly supported that Bacon was intoxicated by alcohol, it found that the state of the evidence slightly favored an egregious harm finding because it introduced an unfounded theory of intoxication that risked confusing the jury and undermining the trial. The Court also found that the State’s arguments favored egregious harm because the State referred to the “any other drugs” when describing the definition of intoxication. Lastly, the Court recalled that the substance was not tested “to determine its identity or THC content,” Bacon’s blood was not tested for drugs, there was no evidence that Bacon was under the influence of a controlled substance, and the parties never clarified to the jury that the evidence solely related to intoxication by alcohol. Thus, the Court reasoned that the jury deliberated under a charge that misstated the evidentiary scope of the case.[16]
Having found that the jury charge error caused egregious harm, the Court sustained Bacon’s second issue.
The takeaway
This case stands as a harsh reminder to trial prosecutors that the jury charge conference is among the most fraught parts of trial. Prosecutors should limit the definitions of elements in the jury charge to the parts that apply to the facts of the case in accordance with Burnett.
It’s important for trial prosecutors to remember that in a DWI trial, there must be a link that connects the evidence of the alleged intoxicant to the defendant’s state of intoxication. In Bacon, the jury charge should have excluded the portions that referred to a controlled substance, drug, or combination, like this:
“Intoxicated” means either: 1) not having the normal use of mental or physical faculties by reason of 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 into the body; or 2) having an alcohol concentration of 0.08 or more.
Remember: The defense does not have to object to preserve charge error.
Consider that in Oullette, there was no evidence that the defendant consumed the pills that the police recovered, but there was evidence that both the alcohol and one of the types of pills—Soma—are central nervous system depressants. The Oullette defendant appeared intoxicated, and she had a drug that could have produced the observed symptoms of intoxication. This evidence allowed a rational juror to infer that the defendant consumed the drug.[17]
Contrast Oullette with Bacon, in which there was no evidence that Bacon consumed the substance, nor was there evidence that it could have caused any intoxicating effects, nor was there evidence that conclusively identified the substance as synthetic marijuana.
Interestingly, the State has filed a petition for discretionary review to the Court of Criminal Appeals (CCA) that draws attention to evidence on the record that is absent from the Fourteenth Court’s opinion.[18] The defense had called a forensic toxicology expert who testified that he could not rule out the presence of toluene—a substance used by people who huff paint—which can inflate the ethanol result and is commonly found in toxicology cases. The expert also testified that huffing can cause effects similar to alcohol, such as glassy eyes and disorientation, and it can cause the loss of normal use of mental and physical faculties.[19] This could affect the case’s ultimate outcome should the CCA accept the State’s petition. If fact, considering these additional facts makes me wonder whether the mention of drugs in the jury charge was a response to the defense’s expert witness’s testimony. If so, then Oullette, not Burnett, would control.
Prosecutors should avoid using the Bacon Court’s analysis of same-transaction contextual evidence. Although the Court concluded that excluding the substance would have left the jury with an incomplete and potentially misleading account of the circumstances, it didn’t explain how it came to that conclusion. Same-transaction contextual evidence must be “‘necessary to the jury’s understanding of the offense’ such that the charged offense would make little sense without the same-transaction evidence.”[20] According to the Court, the exclusion of the discovery of an unidentified substance that was thought to be synthetic marijuana (a lab-made chemical compound that is sprayed on plant-like material)[21] would have left the jury with an incomplete and potentially misleading account of the circumstances of Bacon’s arrest and the inventory of his vehicle. Even though reasonable minds can differ, I fail to see how this evidence is so “blended or completely interwoven” with Bacon’s criminal episode that it must be necessary to the jury’s understanding of the charged offense.[22] I’m concerned that relying on facts as scant as the ones in this case to support an argument for same-transaction contextual evidence could lead to unfavorable caselaw down the road.
Of course, all of this can change if the CCA accepts the State’s petition. Or maybe it will have already done so by the time this issue of the journal is published. Whatever happens, prosecutors would do well to remember the core lesson of this case as it stands today: Be prepared for the charge conference, even when exhausted.
[1] No relation to the actor with the same name.
[2] Bacon v. State, No. 14-23-00939-CR, 2026 WL 363516, at *1, *3 (Tex. App.—Houston [14th Dist.] Feb. 10, 2026, pet. filed).
[3] Id. at *2.
[4] Id. at *5.
[5] Id.
[6] Id. at *2. (citing Mayes v. State, 816 S.W.2d 79, 80 (Tex. Crim. App. 1991)).
[7] Id. at *3.
[8] Id. at *4.
[9] Id. (citing Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)).
[10] Id. at *5.
[11] Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017).
[12] Id.
[13] Bacon, 2026 WL 363516, at *7.
[14] Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011) (“In short, the appellant appeared intoxicated, police found in her vehicle a drug that could have produced the observed symptoms of intoxication, and she refused a blood test”).
[15] Id. at *7.
[16] Id. at *7–*8.
[17] Oullette, 353 S.W.3d at 870.
[18] Additionally, neither Bacon’s nor the State’s briefs mention this evidence either.
[19] Bacon, 2026 WL 363516; State’s Petition for Discretionary Review at 7, 10, 17.
[20] Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021) (quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).
[21] Bauer v. Gulshan Enterprises, Inc., 617 S.W.3d 1, 16 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
[22] Inthalangsy, 634 S.W.3d at 756.