Burnett v. State, NO. PD-0576-16, 2017 Tex. Crim App. LEXIS 878

The jury should have been instructed that “inotixation” only meant not having the normal use of mental or physical faculties by reason of the introduction of alcohol. The instruction should NOT have referred to other substances because there was insufficient evidence of intoxication by other substances even through police later found hydrocodone pills in the defendant’s vehicle. The Court held that there was NO evidence in the record as to what kind of drug hydrocodone was, whether it could cause intoxicating effects, or whether the symptoms of intoxication defendant was experiencing were also indicative of intoxication by hydrocodone. The jury charge must apply the law to the facts produced at trial.


    • Adams v. State, 67 S.W.3d 450 (Tex.App.-Fort Worth 2002, pet. ref’d.).
    • Davis v. State, 949 S.W.2d 28 (Tex.App.-San Antonio 1997, no pet.).
    • Ray v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref’d).
      • Not required to charge jury that defendant needs to be observed continuously for 15 minutes before they can consider lntoxilyzer test result.
    • Smithey v. State, 850 S.W.2d 204 (Tex.App.-Fort Worth 1993, pet. ref’d).
    • Garcia v. State, 874 S.W.2d 688 (Tex.App.-EI Paso 1993, pet. ref’d).
    • Gifford v. State, 793 S.W.2d 48 (Tex.App.-Dallas 1990), pet. dism’d, improvidently granted, 810 S.W.2d 225 (Tex.Crim.App. 1991)


    • Neaves v. State, 767 S.W.2d 784 (Tex.Crim.App.1989).
      • Charge that singles out limited parts of the evidence constitutes improper comment by judge on weight of evidence. In this case not entitled to charge concerning possibility that defendant received a blow to the head the results of which the officer mistook for signs of intoxication.
    • Grissett v. State, 571 S.W.2d 922 (Tex.Crim.App.1978).
      • Defendant is entitled to jury instruction on another “causation” factor only when he:
        1. denies use of alcohol, and
        2. can explain his suspect actions.
    • Drapkin v. State, 781 S.W.2d 710 (Tex.App.-Texarkana 1989, pet. ref’d).
      • When defendant claims fatigue or some other alternative cause that merely negates existence of element of state’s case, no defensive jury instruction need be given.


    • Stone v. State, 685 S.W.2d 791 (Tex.App.-Fort  Worth 1985), aff’d., 703 S.W.2d 652 (Tex.Crim.App. 1986).
      • Improper to charge jury it should disregard results of test if jury had reasonable doubt as to whether instrument was in good working order. Court held that hole in breath test tube went to weight to be accorded the test result.
    • Atkinson v. State, 923 S.W.2d 21 (Tex.Crim.App. 1996).
      • Should have charged on issue of whether DPS regulations regarding breath testing were complied with. Court of Criminal Appeals holds that the charge on the working condition of instrument in this case was proper and sets out the following standard for making that determination on page 5 and it does bear reading. It did remand the case to the Fort Worth Court of Appeals because that court applied the wrong standard in determining that the failure to give the charge was not harmless. Upon remand, that court found harm.


Maddox v. State, 705 S.W.2d 739 (Tex.App.-Houston [1st Dist.] 1986), pet. dism’d, 770 S.W.2d 780 (Tex.Crim.App. 1988).

Not required to include definition of alcohol concentration as it relates to blood/urine when evidence is that breath test given.


    • Gray v. State, 152 S.W.3d 125 (Tex.Crim.App. 2006).
      • This appeal involved a DWI case where the State alleged alcohol as the intoxicant and the defense presented evidence that it was the anti-depressants the defendant was taking more than the alcohol that caused his behavior. The State’s chemist testified the drugs the defendant took had a synergistic effect and the Heard/Sutton charge was given. The defense attacked this and argued that the intoxicant was an element of the DWI charge and that Sutton should be overruled. The Court of Criminal Appeals rejected both of those arguments. It concluded that the substance that causes intoxication is not an element of the offense. Instead, it is an evidentiary matter. The Court affirmed that Sutton was properly decided and that a synergistic charge was properly used in this case.
    • Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.  1995).
    • Heard v. State, 665 S.W.2d 488 (Tex.Crim.App. 1984).
    • Booher v. State, 668 S.W.2d 882 (Tex.App.-Houston [1st Dist.] 1984, pet. ref’d).
    • Miller v. State, 341 S.W.2d 440 (Tex.Crim.App. 1960).
      • State entitled to when drug use evidence comes out, even though not alleged in charge.
    • Atkins v. State, 990 S.W.2d 763 (Tex.App.-Austin 1999, no pet.).
      • Held to be error, albeit harmless, when court gave synergistic charge that spoke to defendant’s “allowing his physical condition to deteriorate”. Court distinguishes this instruction from other synergistic charge situations and holds it bordered on comment on weight of evidence.
    • Barron v. State, 353 S.W.3d 879 (Tex.Crim.App. 2011).
      • Trial court’s error in giving “synergistic effect” instruction regarding enhanced effects when individual combines alcohol with medication was not harmless. At trial there was no evidence that defendant had ingested any medication or intoxicating substance other than alcohol. Jury had heard definition of intoxication, and erroneous instruction emphasized State’s evidence of combination by suggesting specific mode of action through which use of “medication or drug” together with use of alcohol could produce  intoxication.
    • Rodriguez v. State, 18 S.W.3d 228 (Tex.Crim.App.2000).
      • Defendant in this felony DWI trial was alleged to have been intoxicated by the introduction of “alcohol” into his body. There was testimony at trial by defendant that he had not been drinking alcohol but had taken cold/flu medication (Contact) that made him drowsy. The charge allowed the jury to convict if they found the defendant intoxicated “by reason of the introduction of alcohol, a drug, or a combination of both of these substances” into the body. The State argued the Heard and Sutton cases permitted this but the Court pointed out that Heard and Sutton only speak to charging that a substance made a suspect more susceptible to alcohol while this expanded the theory by allowing conviction on theory of introducing a drug into the body.
    • Nelson v. State, 436 S.W.3d 854 (Tex.App.-San Antonio 2014, no pet).
      • Defendant admitted to officer that he had taken two prescriptions and tried to say that those, and not the alcohol, explained his condition. The State asked for and received a synergistic charge. Defense says that was error because there was no lay or expert testimony as to what drugs were consumed and what the potential effect of those drugs would be and whether there would be an interaction with alcohol consumed. The Court held that a synergistic charge is proper without expert testimony so long as evidence is presented at trial that a substance other than alcohol may have contributed to intoxication. The Court further adds “a trial court must provide a synergism effect instruction when a defendant raises evidence of intoxication due to an interaction with medication.”


Nelson v. State, No. 11-14-00276-CR (Tex. App. – Eastland 2016)

Bradford v. State, 230 S.W.3d 719 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

Fulenwider v. State, 176 S.W.3d 290 (Tex.App.-Houston [1st Dist] 2004, pet. ref’d).

Torres v. State, 109 S.W.3d 602 (Tex.App.-Fort Worth 2003, no pet.).

Trial Court properly denied request for specific verdict form in DWI trial. Since the definition of intoxication sets forth alternative means of committing one offense, a special verdict form is not needed when multiple theories of intoxication are alleged.

See also:

  • Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref’d).
  • Blok v. State, 986 S.W.2d 389 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d).
  • Chauncey v. State, 877  S.W.2d 305 (Tex.Crim.App. 1994).
  • Reardon v. State, 695 S.W.2d 331 (Tex.App.-Houston [1st Dist.] 1985, no pet.)
  • McGinty v. State, 740 S.W.2d 475 (Tex.App.-Houston [1st Dist.] 1987, pet. ref’d).
  • Sims v. State, 735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. ref’d).
  • Ray v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref’d).

Though separate theories of intoxication are alleged, a general verdict form is sufficient if evidence supports conviction under either theory.


Reidweg v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pet.. ref’d).

Ray v. State, 749 S.W.2d 939, 944 (Tex.App.-San Antonio 1988, pet. ref’d).

Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Crim.App. 1996).

Davis v. State, 949 S.W.2d 28, 29-30 (Tex.App.-San Antonio 1997, no pet.).

Owen v. State, 905 S.W.2d 434, 437-39 (Tex.App.-Waco 1995, pet. ref’d).

These opinions say that separate verdict forms should have been given but further hold that the failure to do so was harmless so there was sufficient evidence to support a finding of guilt under either theory of intoxication. So they really don’t contradict the cases cited in (F) above.


Hernandez v. State, 842 S.W.2d 294 (Tex.Crim.App.  1992).

Defendant has no burden to show he has a valid driver’s license to be entitled to a jury instruction that the jury can recommend his driver’s license not be suspended.


    • Moore v. State, 520 S.W. 3rd 906 (Tex. Crim. App. 2017)
      • Defendant’s SUV constituted a Deadly Weapon, It was used in the course of committing a felony DWI, even though no one was seriously injured or killed. The law does not require actual death or serious bodily injury. The evidence showed that the defendant was driving while intoxicated, almost three and a half times the legal limit, there was a collision, the defendant was driving fast enough that the impact caused a chain reaction of collisions that pushed another SUV into the intersection when cars in the intersecting roadway had the right of way, there were other cars present at the intersection and there was a danger that the other SUV could have been struck when pushed into the intersection.
    • Phillips v. State, No. 07-16-00237-CR, 2017 Tex. App. LEXIS 5439, 2017 WL 2608245 (Tex. App. – Amarillo 2017)
      • The defendant was operating a motorcycle at a high rate of speed, he passed two vehicles at the same time in a no passing lane, with light rain, at midnight while intoxicated. The Court held that there was sufficient evidence to support a deadly weapon finding.
    • Pena v. State, No. 07-15-00016-CR, 2015 WL 6444831 (Tex.App.-Amarillo 2015)
      • This case involves a drunk driver who rear ended another motor vehicle. He was convicted of Felony DWI and got a Deadly Weapon finding. That finding was appealed. The opinion discusses the standard for determining whether a motor vehicle was a deadly weapon including requirement that the danger to others be real and not merely hypothetical. The evidence here was sufficient even though the occupant of the vehicle struck did not suffer serious injury.
    • Sheffield v. State, No. 01-12-00209-CR, 2013 WL 5638878 (Tex.App.-Houston [1st Dist] 2013, pdr ref’d)
      • Where witness testified that he had to make evasive maneuvers to avoid colliding with Defendant’s car, and other drivers testified they honked their horns and slammed on their brakes to avoid Defendant’s car, and Defendant nearly hit a car when her car “jumped up on the curb” at the Wendy’s restaurant and observed Defendant’s car nearly rear-end several others and caused other vehicles to slam on their brakes to avoid colliding with Defendant’s car, there was sufficient evidence to support the Deadly Weapon finding.
    • Sierra v. State, 280 S.W.3d 250 (Tex.Crim.App. 2009). On remand to Sierra v. State, No. 14-06-00528-CR, 2009 WL 3863288 (Tex.App.-Houston [14th Dist.] 2009).
      • In this felony DWI case, the Court of Criminal Appeals reversed the Court of Appeals holding that there is insufficient evidence that the defendant’s vehicle was used as a deadly weapon. The facts show the defendant struck a vehicle that pulled out of an apartment complex parking lot. The defendant argued he was not speeding, he had the right of way, his view was obstructed, and he tried to avoid the collision. The dissent argues that the finding was not appropriate because the defendant did not cause this accident and was merely involved in an accident with a “careless driver who was injured.” The Court majority focused on the lack of evidence that defendant attempted to brake before the crash even though he saw the other vehicle in time to do so, and the fact the jury could have found evidence the defendant was speeding.
    • Woodall v. State, No. 03-05-00850-CR, 2008 WL 3539997 (Tex.App.-Austin 2008 pet. ref’d) (not designated for publication).
      • In this case witness testified that defendant entered his lane of traffic and almost hit his truck. Witness had to slow down when defendant entered his lane and further described how defendant struck several traffic barrels which was sufficient proof that he was “actually endangered” by the defendant’s driving so a deadly weapon finding would stand.
    • Ochoa v. State, 119 S.W.3d 825 (Tex.App.-San Antonio 2003, no pet.).
      • In this case officer testified that there were other vehicles on the road when the defendant drifted out of his lane and came “real close to striking and hitting” another vehicle. The Court found this was sufficient because there were “other drivers on the road who were actually endangered by the defendant’s use of his vehicle” so the deadly weapon finding was proper.
    • Mann v. State, 58 S.W.3d 132 (Tex.Crim.App.2001).
      • Testimony showed that defendant almost hit another vehicle “head-on” when it crossed the center line and that other vehicle took evasive action and avoided the collision. The arresting officer further testified that based on his experience reconstructing accidents, he was of the opinion that a collision under those circumstances would have been capable of causing death or serious bodily injury. Charge on and finding of Deadly Weapon was proper.
    • Davis v. State, 964 S.W.2d 352 (Tex.App.-Fort Worth 1998, no pet.).
      • Testimony showed that the defendant was weaving and drove in the oncoming lane of traffic resulting in another vehicle having to take evasive action to avoid a collision. Deadly Weapon finding was proper.
    • Drichas v. State, 175 S.W.3d 795 (Tex.Crim.App.2005) on remand 187 S.W.3d 161 (Tex.App.-Texarkana 2006), pet. granted, judgm’t vacated, 210 S.W.3d 644 (Tex.Crim.App. 2006) on remand, 219 S.W.3d 471 (Tex.App.-Texarkana 2007 pet. ref’d).
      • Court of Appeals had found there was insufficient evidence to show that the motor vehicle in this case was used as a deadly weapon because it found there was no evidence that others were actually endangered. In reversing this holding, the Court of Criminal Appeals found that the Court of Appeals had misconstrued the actual danger requirement by equating a deadly weapon’s capability of causing death or serious bodily injury with its probability of doing, thus reading into the statute an additional requirement of evasive action or zone of danger when said requirement did not exist and therefore reversed and remanded this case to the Court of Appeals. Upon remand, the Court of Appeals once again found there was insufficient evidence to support the deadly weapon finding based on its finding that there was insufficient evidence that there was another motorist present on the roadway “at the same place and time” as the defendant when he drove in a reckless manner. The Court of Criminal Appeals once again accepted PDR and reversed and remanded again, finding that the factual-sufficiency standard of review used by the Court of Appeals was flawed. In last remand Court of Appeals applied proper standard and (big surprise) again held against deadly weapon finding.
    • Moore v. State, No. 02-15-00402-CR, No. 02-15-00403-CR, 2016 WL 4247978 (Tex. App. – Fort Worth 2016) pdr filed
      • This case involved a habitual drunk driver who drove his Mercedes into the back of the car occupied by a woman and her child that was properly stopped at a light had drove them into the intersection where another car was struck by IP vehicle.  No one was injured and the Court For reasons that I do not understand Court found this did not meet the standards set out in Cook? Those five factors were:
        1. Intoxication—which is rejects as a condition and not relating the manner in which he drove vehicle
        2. Speed—held not sufficient though the speed limit at a signal is “0”.
        3. Disregard of traffic signal (what the court called a single infraction was not sufficient)
        4. Erratic Driving (no evidence of how driving before collision) and
        5. Failure to control vehicle (insufficient evidence).
      • Court also questioned sufficient of evidence of reckless driving. Hopefully pdr will be granted.
    • Martinez v. State, No. 03-14-00802-CR, 2016 WL 5874863 (Tex. App. – Austin 2016)
      • In this case officer came upon Defendant and his disabled car on the freeway and determined Defendant had hot retaining wall. In holding insufficient evidence supporting deadly weapon finding the Court focused on the fact that there was evidence supporting only that other “potentially” could have been endangered by Defendant’s driving which was not witnessed by witnesses who all arrived after the crash.  It also emphasized the lack of any direct evidence that other vehicles were on freeway at the time Defendant was driving.
    • Glover v. State, No. 09-13-00084-CR, 2014 WL 1285134 (Tex.App.-Beaumont 2014, pdr ref’d).
      • The Court held that evidence that Defendant was speeding and was intoxicated and that other cars were on the road during the commission of the offense did not support a finding that his vehicle was a deadly weapon
    • Brister v. State, 449 S.W.3d 490 (Tex. Crim App. 2015)
      • Evidence was insufficient to permit inference that Defendant’s operation of his vehicle put another person or motorist in actual danger, as required to support deadly weapon finding with respect to Defendant’s vehicle in prosecution for DWI. Arresting officer’s testimony was that Defendant’s vehicle had crossed center line into “oncoming traffic” only once and there was no other evidence indicating that Defendant’s operation of vehicle during commission of offense actually put another person or motorist in actual danger.
    • Voltman v. State, No. 14-12-00590, 2013 WL 4779704 (Tex.App.-Houston [4 Dist] 2013, pet.filed) (not designated for publication).
      • The Court held a deadly weapon finding was not supported where there is no evidence that Defendant’s conduct placed other people in actual danger. In this case the other cars struck by Defendant’s vehicle were all parked and unoccupied and no one, including Defendant, present at the scene was injured.
    • Boes v. State, No. 03-03-00326-CR, 2004 WL 1685244 (Tex.App.-Austin 2004, no pet.) (not designated for publication).
      • In this case trooper observed defendant failed to come to a complete stop at the stop sign. When turning, defendant over-accelerated and momentarily lost control of his vehicle causing it to fishtail sideways and almost hit the curb of the sidewalk. There was insufficient evidence to support the deadly weapon finding. The Court pointed out there was no evidence that anyone else was actually endangered by the Defendant’s driving.
    • Williams v. State, 946 S.W.2d 432 (Tex.App.-Fort Worth 1997, no pet.). Judgment reformed 970 S.W.2nd 566 (Tex.Crim.App. 1998).
      • Court of Appeals held that a “deadly weapon” finding was not permissible absent evidence that another motorist was on the highway at the time and place defendant drove in an intoxicated condition. Initially reversed for new punishment hearing. The Court of Criminal Appeals held sufficient to just strike Deadly Weapon finding.
    • Desilets v. State, 2010 WL 3910588 (Tex.App.-Beaumont 2010, no pet.) (not designated for publication), Habeas corpus granted by Ex parte Desilets, 2012 WL 333809, (Tex.Crim.App.2012, reh. denied).
      • The State filing an amended motion seven days prior to trial that notified defendant of the State’s intent to prove that he “did then and there use and exhibit a deadly weapon, namely, a motor vehicle” was found to be adequate notice.
    • Hocutt v. State, 927 S.W.2d 201 (Tex.App.-Fort Worth 1996, pet. ref’d).
      • In felony DWI case with an accident and minor injuries, State faxed notice of intent to seek a deadly weapon finding just three days before voir dire began. The notice did not specify on its face that the deadly weapon was the “automobile”. The Court of Appeals held that the notice was neither timely nor adequate and reversed the case on punishment only.


Baggett v. State, 367 S.W.3d 525 (Tex.App.-Texarkana 2012, pet. ref’d).

Murphy v. State, 44 S.W.3d 656 (Tex.App.-Austin 2001, no pet.).

It was improper for the Court to charge the jury on a definition of “normal use”.

But see Davy v. State, 67 S.W.3d 382 (Tex.App.-Waco, 2001, no pet.) for a contrary holding.


Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002, pet. ref’d).

Evidence was presented that the officer saw a vehicle stopped in the middle of the road, facing north, with its hazard lights blinking. The officer saw the suspect alone in the driver’s seat of the vehicle and observed the rear reverse lights were illuminated which he testified meant that the ignition of the vehicle had to be on. After speaking with the suspect and asking her to step out of the vehicle that suspect put the vehicle in park and got out of the vehicle. She was later arrested for DWI. The trial judge directed the State out on DWI and submitted the lesser charge of attempted DWI to the jury for which she was convicted. The State tried to appeal the acquittal on the DWI charge and the Court of Appeals held that it was barred from doing so by double jeopardy and it further held there is no such thing as Attempted DWI and remanded the case for acquittal.


Nelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004, no pet.).

Case involved a defendant who was tried for DWI from ingestion of prescription drugs. The Defendant appealed the court’s denial of his request for a charge on involuntary intoxication and automatism. Involuntary intoxication by prescription medication occurs only if the individual had no knowledge of possible intoxicating side effects of the drug, since independent judgment is exercised in taking the drug as medicine, not as an intoxicant. In this case, the defendant had taken the drugs before and was aware of their effect.  Another reason the defensive charge was not available was that although involuntary intoxication is a defense to criminal culpability, proof of a culpable mental state is not required in prosecutions for intoxication offenses, including DWI. Claim of automatism fails because that defense is not available when, as here, the defendant voluntarily took the intoxicant.


Burkett v. State, 179 S.W.3d 18 (Tex.App. San Antonio 2005, reh. overruled).

The defense argued and presented evidence in this case that what the officer thought was signs of intoxication were actually AIDs related complications. An instruction was requested on that issue and denied. The Court of Appeals held that the Defendant’s medical excuse instruction was not a statutorily-enumerated defense. It merely served as evidence that they could argue would negate the impairment element of the State’s case. Therefore, the trial court properly denied Burkett’s requested instruction.


White v. State, 125 S.W.3d 41 (Tex.App.Houston [14th Dist.] 2003) pet. ref’d 149 S.W.3d 159 (Tex.Crim.App. 2004).

The defense in this intoxication manslaughter case sought a “spoliation” instruction based on the State’s failure to secure a bicycle that was involved in the crash. The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. In this case, the only evidence before the trial court regarding the materiality of the bicycle was an affidavit from appellant’s counsel stating that appellant’s accident-reconstruction expert “has indicated a need to inspect the complainant’s bicycle”. At best, appellant has shown only that preservation of the bicycle might have been favorable, which is insufficient to satisfy the requirement of materiality. The instruction was properly denied in this case.


    • Yokom v. State, No. 2-03-181-CR, 2004 WL 742888 (Tex.App.-Fort Worth 2004, pet. ref’d) (not designated for publication).
      • In response to the denial of the defense request to define “operating” in the jury instruction, the court held that as a general rule, terms not statutorily defined need not be defined in the jury charge, but instead are to be given their common, ordinary, or usual meaning. The term “operating” has not acquired a peculiar meaning in the law. Courts have consistently applied a plain meaning to the word, allowing jurors to freely construe the term to have any meaning within its normal usage.
    • Kirsch v. State, 366 S.W.3d 864 (Tex.App.-Texarkana 2012).
      • This case involves a holding that it was improper for the trial court to define the term “operate” in the jury charge. The Court of Criminal Appeals ruled (Kirsch v. State,357 SW3d 645 (Tex.Crim.App. 2012) that the Trial Court’s defining of the term “operate” constituted a comment on the weight of the evidence. The case was remanded for harm analysis and in this opinion the Court of Appeals found the harm to be egregious and that it warranted reversal and a new trial.


Helm v. State, 295 S.W.3d 780 (Tex.App.-Fort Worth 2009, no pet.).

Bartlett v. State, 270 S.W.3d 147 (Tex.Crim.App. 2008).

Vargas v. State, 271 S.W.3d 338 (Tex.App.-San Antonio 2008, no pet.).

Hess v. State, 224 S.W.3d 511 (Tex.App.-Fort Worth 2007, pet. ref’d).

Jury Charge instruction stating that jury could consider the defendant’s refusal to submit to a breath test as evidence constituted an improper comment on the weight of the evidence.


Otto v. State, 273 S.W.3d 165 (Tex.Crim.App.2008, reh. denied).

At State’s request, the jury instructions included 6.04 of the Texas Penal Code. Defendant claimed that was error and the Court agreed for the following reasons. Unlike Sutton and Gray, the jury charge did not include a susceptibility theory. In Gray and Sutton, the jury charge permitted conviction if the ingestion of drugs made the defendant more susceptible to being intoxicated by the charged intoxicant: alcohol. Here, the jury charge and instructions authorized the jury to find Otto guilty if it found her intoxicated by reason of:

  1. the introduction of alcohol into her body, the charged intoxicant, or
  2. by the introduction of unknown drugs concurrently with alcohol—a combination theory.

A jury’s finding that Otto was intoxicated by reason of unknown drugs concurrently with alcohol does not mean—like in Sutton and Gray—that the jury found Otto intoxicated by alcohol alone. Gray v. State, 152 S.W. 3d at 133 (stating “[i]n both this case and in Sutton, the charge permitted conviction only if the drugs made the defendant more susceptible to the alcohol”).


Tapia v. State, No. 07-14-00203-CR, 2015 WL 1119762 (Tex.App.—Amarillo 2015, pet ref’d)

Dispute over whether or not offense occurs in a public place does not create a right to a 38.23 instruction on the issue. Article 38.23 (a) is an exclusionary rule that is designed to protect a person charged with a crime from illegally obtained evidence. Charge not called for as there is no showing how fact issue is question would result in evidence being admissible. The issue itself was thoroughly covered in Court’s charge.

Vogel v. State, No. 05-11-01669-CR, 2015 WL 6992555 (Tex.App.-Dallas 2015)

The officer testified he smelled odor of alcohol on Defendant and Defendant testified he did not “think” the Officer could have smelled alcohol on his breath did not constitute affirmative evidence.  That officer did not smell alcohol and therefore he was not entitled to 38.23 charge.

Doyle v. State, No. 01-06-01103-CR, 2008 WL 597450 (Tex.App.-Houston [1 Dist.] 2008, pdr. ref’d).

At the charge conference, defendant objected to the lack of a 38.23 instruction regarding the stop of his car, specifically whether he was weaving or failed to maintain a single lane. Both the officer and the defendant testified that he wove into the lane of oncoming traffic. Defendant explained that he did so to avoid a parked car, but did not dispute the reason why the officer stopped him, i.e., because he was weaving. Because there was no factual issue in dispute regarding the stop, he was not entitled to the requested instruction.

Sledge v. State, No. 09-93-00667-CR, 1994 WL 247961 (Tex.App.-Dallas June 9, 1994, no pet.) (not designated for publication).

The defendant testified that he changed lanes but only because the lane ended, “played out.” The Court of Appeals held that the defendant was not entitled to an Article 38.23 instruction because he did not dispute the officer’s testimony about his weaving but, instead, sought to explain the reason he drove that way. Id. The Court of Appeals concluded that the evidence did not raise a fact issue about whether the officer stopped the defendant.

Bell v. State, No. 2-04-287-CR, 2005 WL 503647 (Tex.App.-Fort Worth 2005, pet. ref’d) (mem. op., not designated for publication).

The Court of Appeals upheld the trial court’s denial of the defendant’s request for an Article 38.23 instruction, noting that she did not contest the existence or nature of the evidence underlying the officer’s decision to stop her. She merely challenged whether the circumstances he observed authorized the stop. Because only the effect of the underlying facts was disputed, the Court of Appeals held that the defendant was not entitled to an Article 38.23 jury instruction.

Beasley v. State, 810 S.W.2d 838, (Tex.App.-Fort Worth 1991, pet. ref’d).

Where the arresting officers and the defendant testified that she was swerving and weaving between lanes on the highway and the only issue was that the defendant offered an explanation that she swerved because she was trying to stop her children from fighting, the court held she was not entitled to the Article 38.23 instruction she requested.


Flores v. State,  No. 01-15-00487-CR, 2016 WL 3362065 (Tex. App.  – Houston (1st Dist.) 2016)

Defendant objected to including per se definition in jury instructions as the sample was taken three hours after the stop and there was no extrapolation. Citing Kirsch case and rejecting Defendant’s argument that Kirsch is flawed the Court finds the per se language was properly submitted.

Kirsch v. State, 306 S.W.3d 738 (Tex.Crim.App. 2010).

It was proper for the Trial Court to instruct the jury that it could find the defendant guilty under the per se impairment definition of intoxication, despite the absence of retrograde extrapolation evidence. The defendant’s blood test showed that he had a BAC of 0. 10 at the hospital, 80 minutes after he was involved in the car wreck. The results are evidence from which a jury could find the defendant guilty under the per se impairment definition. Trial Court’s instruction in prosecution for driving while intoxicated (DWI), that jury could consider defendant’s blood alcohol content (BAC) test result “for the limited purpose of showing that the individual tested had ingested alcohol only at some point before the time of the test,” was misleading and an improper comment on the weight of the evidence; BAC test result was also probative to show that defendant was intoxicated at the time he was driving, even though it was not sufficient by itself to prove intoxication at the time of driving.

Williams v. State, 307 S.W.3d 862 (Tex.App.-Fort Worth 2010, no pet.).

Even though BAC was .07 ninety minutes after the defendant’s arrest and there was no extrapolation evidence, the trial court properly submitted the per se theory of intoxication as the evidence supported an inference the defendant was intoxicated under both theories.


Quellette v. State, 353 S.W.3d 868 (Tex.Crim.App. 2011).

Even though there was no testimony—expert or otherwise—as to whether the particular drugs found in Quellette’s vehicle could have an intoxicating effect or whether Quellette’s actions, demeanor, and conduct were consistent with being under the influence of drugs or under the influence of a combination of drugs and alcohol, it was proper for judge to include the language concerning intoxication by drugs in the jury instruction.


Burnett v. State, No. 488 S.W.3d 913, (Tex.App.-Eastland 2016, pdr granted)

This was a DWI case where the charge contained the standard general allegation of intoxication.  There was evidence that the Defendant had some white and blue pills on his person and that the white pill may have been hydrocodone. The officer who testified about finding pills was not a DRE and had no training to allow him to say whether intoxication he observed was due to drugs and no evidence that Defendant had ingested any of the pills. The Defendant objected to the full definition being submitted to jury and wanted the language about intoxication by drugs struck. The Court of Appeals found that only the alcohol portion of the definition should have been submitted.

Erickson v. State, 13 S.W.3d 850 (Tex.App.-Austin 2000, pet. ref’d).

In this case, the Court instructed the jury that a person is intoxicated within the meaning of the law “when such person does not have the normal use of his physical or mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of these substances into the body, tracking the charging instrument and the statutory definition.” There was no evidence at trial that defendant consumed any intoxicant except alcohol. For that reason, the Trial Court should have limited the definition in the instructions to just refer to alcohol. This error was found to be harmless because the prosecutor never suggested that the jury could convict on the basis of a finding that appellant was intoxicated by the use of a controlled substance or drug, either alone or in combination with another substance.

Ferguson v. State, 2 S.W.3d 718 (Tex.App.-Austin 1999, no pet.).

In this case, the term “intoxicated” was defined in the charging instrument and the jury charge as “not having the normal use of one’s physical or mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a substance or its vapors that contain a volatile chemical, an abuseable glue, or an aerosol paint, or a combination of two or more of those substances into the body.” The statute does not include within its definition of “intoxication” the words “a substance or its vapors that contain a volatile chemical, an abuseable glue, or an aerosol paint.” There was no evidence presented at trial that the defendant’s alleged intoxication was caused by the introduction into her body “a substance or its vapors that contain a volatile chemical, an abuseable glue, or an aerosol paint.” For these reasons and the fact that the prosecutor referred to the erroneous charge in argument, the error was found to be harmful and the case was reversed.


Crenshaw v. State, 378 S.W.3d 460 (Tex.Crim.App. 2012). On remand Crenshaw v. State, 424 S.W.3d 753 (Tex.App.-Fort Worth 2014).

A jury charge, which instructed the jury on both the subjective definition and the per se definition of intoxication despite the information having alleged only the subjective definition, was held to be error. The Court of Appeals held that where the State has elected to narrow its case by relying solely on the subjective definition in the information but at trial sought and obtained (over timely objection) the benefit of both the subjective and per se definitions in the charge, it is error. In its discussion of the harm, it points out that because the information did not allege the “per se” theory of intoxication, there was no notice to appellant of any intent to offer expert evidence of retrograde extrapolation and no opportunity for appellant to secure an expert to rebut the information. The Court of Criminal Appeals reversed the Court of Appeals finding that in this case, the per se definition of intoxication was only in the abstract section of the jury charge, and it was not incorporated into the application paragraph. The application paragraph tracked the language of the information, which alleged the subjective theory of intoxication, and thus restricted the jury’s consideration to only those allegations contained in the information.

The jury is presumed to have understood and followed the Court’s charge, absent evidence to the contrary. Therefore, we presume that the jury convicted Defendant of DWI pursuant to the subjective theory of intoxication. After remand from Court of Criminal Appeals, the Fort Worth Court of Appeals affirmed the conviction.


Pallares-Ramirez v. State, No. 05-15-01347-CR, 2017 Tex. App. LEXIS 3, 2017 WL 33738 (Tex. App. –  Dallas 2017)

This case involved a conviction of a DWI with a BAC greater than .15. The Defendant was arraigned on a class B DWI and the elevated BAC was presented as a punishment issue. However, the Information alleged the class A offense. The jury found him guilty as charged in the Information. The State conceded error on the issue and acknowledged that the elevated BAC is in fact an element of the class A misdemeanor DWI rather than an enhancement. The Court found that the defendant was not harmed by this mischaracterization because the defendant was aware of the charge against him (he had notice) from the information, the defendant took the position throughout the trial that the State had to prove his BAC was greater than a .15, the jurors were aware that the BAC threshold at issue was a .15 from the onset of voir dire, the jurors were told that the range of punishment was that of class A misdemeanor, and the jurors found “true” that the defendant had a BAC greater than .15.

Castellanos v. State, 2016 Tex. App. LEXIS 11587 (Tex. App. – Corpus Christi – Edinburg (13thDist) 2016)

This case establishes that the .15 or greater BAC result is an element and the State has the burden to prove it at the guilt/innocence stage.

Navarro v. State, No. 14-13-00706-CR, 2015 WL 4103565 (Tex.App.-Houston (14th Dist.) 2015)

Prior to this a subject of some debate was whether the Aggravated DWI of greater than 0.15 should be treated as an enhancement or not.  This decision makes clear that the so-called 0.15 enhancement is actually not an enhancement, but is in fact an element of a Class A misdemeanor offense.  The court held that a person’s blood alcohol concentration (BAC) level provides the basis for a separate offense under 49.04(d) and is not merely a basis for enlargement. Evidence of a blood alcohol level of 0.15 or greater represents a change in the degree of the offense, from Class B to Class A misdemeanor, rather than just an enhancement of the punishment range. The practical impact is that 0.15 or greater at time of test is something the State must prove in the guilt innocence phase and it raises the tactical issue for the State to consider whether to request a lesser instruction of DWI.


Leonard v. State, No. 14-15-00560-CR, 2016 WL 5342776 (Tex. App. – Houston (14th Dist) 2016)

This was an Aggravated DWI charge where the charging information erroneously alleged that the sample taken from Defendant showed a level of .15 or above at the time of the commission of the offense. The statute requires that it only be .15 or above at the time the sample was tested. At charge conference the State at first sought to have judge submit charge that tracked statute but upon the defense affirming it wanted the charge to reflect the language in charging instrument the State agreed to defense requested language. On appeal the Defendant tried to argue that the charge submitted should have tracked the statute but the Court holds that when a Defendant requests and is given a charge he can’t complain about it on appeal.

Meza v. State, No. 01-15-01050-CR, 2016 WL 3571390 (Tex. App. – Houston (1st Dist) 2016)

This case like the one above involves State incorrectly alleging in the information that  the .15 BAC required for a Class A DWI related to time of offense and not to time of testing. They were given and rejected an opportunity to strike language as surplusage before charge was submitted. Jury convicted of the Class A misdemeanor thereby finding the Defendant was .15 or above at the time of the offense. Case in chief had no retrograde extrapolation. The Court rendered a judgment of acquittal.