Crenshaw, Bradley Kelton

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1252-11

BRADLEY KELTON CRENSHAW, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

H ERVEY, J., delivered the opinion of the Court in which P RICE, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., concurred. W OMACK, J., dissented. M EYERS, J., not participating.

OPINION Appellant, Bradley Kelton Crenshaw, was convicted of driving while intoxicated.

The Fort Worth Court of Appeals reversed his conviction, determining that the trial court

erred in submitting a jury charge that included both the subjective and per se definitions

of intoxication, even though the information alleged only the subjective definition. Crenshaw - 2

Crenshaw v. State, No. 02-08-00304-CR, 2011 Tex. App. LEXIS 5916 (Tex. App.—Fort

Worth July 28, 2011) (mem. op., not designated for publication). We granted the State’s

petition for discretionary review, and we will reverse the judgment of the court of

appeals.

I. BACKGROUND

In two paragraphs, Appellant was charged by information alleging that he operated

a motor vehicle in a public place while he was intoxicated “by not having the normal use

of his mental or physical faculties by reason of the introduction” of (1) alcohol or (2)

“alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or

more of these substances into his body.” See T EX. P ENAL C ODE §§ 49.01, 49.04.

At trial, Officer Andrew Anderson testified that he stopped Appellant around 2:00

a.m. after witnessing him changing lanes without signaling and weaving onto the shoulder

of the road as he exited the highway. The officer smelled alcohol on Appellant’s breath,

and he noticed that Appellant had heavy, red, bloodshot eyes and soft, slurred speech.

Anderson also smelled the odor of marijuana on Appellant. Appellant admitted to the

officer that he had a bourbon and Coke at 1:00 a.m., and that he had smoked marijuana a

week and a half previously but denied that he had smoked that night. During field

sobriety tests, Appellant demonstrated several clues of intoxication. Thus, under the

totality of the circumstances, Anderson “had reason to believe he was intoxicated” and

arrested Appellant for DWI. Subsequently, Anderson conducted an inventory search of Crenshaw - 3

Appellant’s vehicle and found a marijuana leaf in the center console.1

Anderson testified that he then took Appellant to the hospital for a blood draw, to

which Appellant consented.2 The blood draw occurred at 4:01 a.m. In anticipation of the

State’s introduction of his blood-test results and extrapolation testimony, Appellant

objected, under Rules 401 and 402, that the evidence would be confusing to the jury and

that it was not relevant to whether he had had the normal use of his faculties at the time of

the alleged offense. See Tex. R. Evid. 401 & 402. The trial court overruled the objection,

and Appellant requested and was granted a running objection.

Andrew Macy, a forensic scientist at the Texas Department of Public Safety’s

crime laboratory in Garland, testified that the blood sample taken from Appellant

contained 0.07 grams of alcohol per 100 mL of blood.3 Angela Springfield, chief

toxicologist of the Tarrant County Medical Examiner’s Office, explained that the State of

Texas designates a 0.08 blood alcohol concentration (BAC) as the legal level of

intoxication but that changes resulting from intoxication can be scientifically measured at

BAC levels of 0.03 and 0.04. Although Springfield testified that she would need more

information to determine Appellant’s exact BAC at the time of driving, she opined that it

1 Both Appellant and the passenger were charged with possession of marijuana. 2 Anderson explained that he chose to execute a blood draw, rather than a breath test, because he had reason to believe that Appellant was also under the influence of marijuana. 3 The Garland lab was not equipped with the toxicology equipment needed to test Appellant’s blood for the presence of marijuana, so Anderson decided not to have that testing done. Crenshaw - 4

was higher than .08. For example, she explained that if a person is 6'1" and 140 pounds,

has had “one or two bourbon and Cokes,” had his last drink at 1:00 a.m., is stopped by the

police at 2:06 a.m., and had a blood draw at 4:01 a.m. that showed a BAC of 0.07, then

that person would have had a BAC of at least 0.08 at the time he was driving.

During the charge conference, the State objected to the proposed definition of

intoxication, which did not state that a person was intoxicated if he had a BAC of .08 or

more. In response, the trial court included the per se definition in the jury charge but did

not include it in the application paragraph. Specifically, in the definition section, the trial

court instructed the jury that

(1) “Intoxicated” means: A. 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, or a combination of two or more of these substances into the body; or B. Having an alcohol concentration of 0.08 or more.

The trial court also instructed the jury, without objection, that

You are further instructed that if a defendant indulges in the use of Marijuana to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the use of alcohol alone.

The application paragraph tracked the language of the information and permitted

the jury to convict Appellant of DWI if they found beyond a reasonable doubt that he

did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, and while so intoxicated, by Crenshaw - 5

reason of the introduction of alcohol into his body, either alone or by introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of these substances into the body, and on the said date did then and there drive or operate a motor vehicle in a public place while intoxicated.

In closing arguments, the State contended that the jury could find Appellant guilty

of DWI under either theory of intoxication and that the jurors did not have to agree as to

which one. The jury found Appellant guilty. The trial court sentenced him to 120 days’

confinement and assessed an $850 fine, probated for twenty-four months.

II. COURT OF APPEALS

On direct appeal, Appellant argued that the trial court erred in submitting a charge

that instructed the jury on both the subjective and per se definitions of intoxication when

the information alleged only the subjective definition. The Fort Worth Court of Appeals

agreed, and holding that the error was harmful, it reversed the trial court’s judgment and

remanded the case for a new trial. Crenshaw, 2011 Tex. App. LEXIS 5916.

The court of appeals determined that, because the information did not allege a per

se theory of intoxication, Appellant did not have notice that the State would prove per se

intoxication and, thus, had no opportunity to prepare the appropriate defense. Id. at *10-

13 (citing Otto v. State, 273 S.W.3d 165, 170-71 (Tex. Crim. App. 2008); Reed v. State,

117 S.W.3d 260, 265 (Tex. Crim. App. 2003)). The court of appeals determined that the

State’s reliance on State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008), was

misplaced because, in that case, the State alleged neither definition of intoxication so it Crenshaw - 6

was able to prove either. According to the court of appeals, by alleging the subjective

definition of intoxication in this case, the State was bound to prove it, and the jury charge

impermissibly permitted a conviction on the per se definition. The court also held that the

trial court erred to include the per se definition of intoxication, finding that the evidence

did not support its inclusion because the retrograde extrapolation evidence was

inadequate. See Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994).

The State appealed to this Court, and we granted discretionary review to address

two issues:

(1) Can submission of a jury charge with an application paragraph that tracks the information’s language verbatim erroneously expand on the allegations of the information, constituting charging error? (2) In light of Barbernell, can abstract submission for both intoxication definitions constitute harmful error under Almanza where the application paragraph tracks the information’s use of the subjective intoxication definition?

Because we hold that the first issue is dispositive, we need not reach the second

issue.

III. ARGUMENTS OF THE PARTIES

A. State’s Arguments

The State argues that the jury charge in this case was proper. Noting that the

application paragraph mirrored the information’s allegations, the State contends that this

Court has routinely held that jury instructions do not expand the allegations a defendant

faces when the application paragraph submitted tracks the indictment’s language Crenshaw - 7

verbatim. Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994). The State

emphasizes that the per se definition was present only in the abstract, not applied, portion

of the jury charge. Compare Lewis v. State, 815 S.W.2d 560, 562 (Tex. Crim. App.

1991), with Otto, 273 S.W.3d at 166, 172, and Reed, 117 S.W.3d at 261-62.

Additionally, the State avers that the jury charge provided adequate notice because

Appellant received notice of the theory on the face of the information. The State argues

that the jury’s verdict, viewed through the lens of the application paragraph, determined

Appellant’s guilt based on the subjective theory of intoxication. According to the State,

Appellant knew pretrial that the State would be introducing the blood-test evidence, and

because the statutory definitions of intoxication overlap and are not mutually exclusive,

the State was justified in presenting evidence of the per se theory of intoxication to prove

that Appellant was subjectively impaired. See Barbernell, 257 S.W.3d at 255; State v.

Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005).

B. Appellant’s Arguments

Appellant responds that the submission of an uncharged allegation by way of a

definition, even if the charging paragraph is correct, constitutes constitutional error when

the State uses that definition to expand the charge beyond that alleged in the charging

instrument. Appellant analogizes this to the legal scenario in which the failure to allege

an alternative manner and means of committing the offense prevents that manner and

means from being submitted to the jury or considered by the court in determining the Crenshaw - 8

sufficiency of the evidence. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App.

2001); Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). According to Appellant,

the State chose to delineate the theory of prosecution in the charging instrument, and it

cannot change the theory of prosecution during trial. Appellant claims that, because the

State submitted evidence on the BAC, submitted the per se definition of intoxication, and

argued that theory in closing arguments, he was convicted on a theory not alleged in the

charging instrument and for which he had no notice prior to trial, in violation of due

process of law. See Plunkett v. Estelle, 709 F.2d 1005 (5th Cir. 1983). Hence, Appellant

avers that the variance between the manner and means alleged and the proof and

arguments presented at trial deprived him of his constitutional right to notice of the

charges against him and his right to effective assistance of counsel in preparing for trial.

See Macias v. State, 136 S.W.3d 702 (Tex. App.—Texarkana 2004, no pet.).

IV. ANALYSIS

A criminal defendant is entitled to fair notice of the specific charged offense. U.S.

C ONST. amend. VI; T EX. C ONST. art. I § 10. The jury charge must set forth the law

applicable to the case. T EX. C ODE C RIM. P ROC. art. 36.14. The State is bound by the

allegations in the charging instrument. Leal v. State, 975 S.W.2d 636, 639 (Tex. Crim.

App. 1998); Doyle v. State, 661 S.W.2d 726, 729 (Tex. Crim. App. 1983).

An indictment or information that pleads the offense of DWI provides adequate

notice when it sets out the elements of the offense as provided in Section 49.04 of the Crenshaw - 9

Texas Penal Code. Barbernell, 257 S.W.3d at 248. A person commits the offense of

DWI “if the person is intoxicated while operating a motor vehicle in a public place.”

T EX. P ENAL C ODE § 49.04(a). Intoxication is an element of DWI, and the Texas Penal

Code sets out two definitions of “intoxicated.” The subjective definition of intoxicated is

“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, or a combination of two or

more of these substances, or any other substance into the body.” Id. § 49.01(2)(A). The

per se definition of intoxicated is “having an alcohol concentration of 0.08 or more.” Id.

§ 49.01(2)(B). These definitions overlap and are not mutually exclusive. Kirsch v. State,

306 S.W.3d 738, 743 (Tex. Crim. App. 2010).

“The conduct proscribed by the Penal Code is the act of driving while in a state of

intoxication.” Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). The two

definitions of intoxication “set forth alternative means by which the State may prove

intoxication, rather than alternate means of committing the offense.” Barbernell, 257

S.W.3d at 256 (quoting Bagheri, 119 S.W.3d at 762). Thus, the definitions of intoxicated

are purely evidentiary matters, and they need not be alleged in the information or

indictment to provide a defendant with sufficient notice—the State may simply allege that

a person was “intoxicated” to satisfy the notice requirement. Id.

In this case, the information alleged the subjective theory of intoxication (i.e., that

Appellant “was intoxicated by not having the normal use of his mental or physical Crenshaw - 10

faculties”). Although the State was not required to provide either definition of

intoxication in the information,4 it went beyond the minimum notice requirement by

providing the definition that it intended to pursue. In fact, Appellant was convicted under

that subjective theory of intoxication as alleged in the information, and including the per

se definition of intoxication in the abstract portion of the charge did not expand the

allegations against Appellant.

It is the application paragraph of the charge, not the abstract portion, that

authorizes a conviction. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996);

Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). The abstract

paragraphs serve as a glossary to help the jury understand the meaning of concepts and

terms used in the application paragraphs of the charge. Plata v. State, 926 S.W.2d 300,

302 (Tex. Crim. App. 1996), overruled on other grounds by Malik, 953 S.W.2d 234. An

abstract charge on a theory of law that is not applied to the facts does not authorize the

jury to convict upon that theory. Hutch, 922 S.W.2d at 172; Campbell, 910 S.W.2d at

477. Generally, reversible error occurs in the giving of an abstract instruction only when

the instruction is an incorrect or misleading statement of a law that the jury must

understand in order to implement the commands of the application paragraph. Plata, 926

S.W.2d at 302.

To illustrate, in Lewis, 815 S.W.2d at 562, a capital murder case, the appellant

4 See Barbernell, 257 S.W.3d at 256. Crenshaw - 11

argued that it was error for the trial judge to abstractly instruct the jury on the theory of

transferred intent. He claimed that doing so authorized a conviction without requiring the

jury to specifically find an intentional killing, contrary to the express language of Section

19.03(a)(2) of the Texas Penal Code. We disagreed because the definition of transferred

intent was a general statement, and the application paragraph did “not purport to authorize

a conviction under any circumstances absent a finding that appellant specifically intended

to kill the deceased.” Id.; see also Mauldin v. State, 628 S.W.2d 793, 796 (Tex. Crim.

App. [Panel Op.] 1982) (holding that the submission of an abstract instruction on the law

of parties was not error because the abstract instruction was not applied to the facts of the

case and the court’s charge specifically required the jury to find the appellant’s guilt

based on his own behavior).

In contrast, in Otto v. State, 273 S.W.3d at 171, we held that the jury charge

improperly broadened the charges against the appellant. The DWI indictment alleged

only that the appellant was intoxicated by the introduction of alcohol. However, a

concurrent-causation instruction was included in the jury charge, and the relevant

application paragraph instructed the jury to convict the defendant if it found that her

intoxication was caused by her ingestion of alcohol, operating either alone or concurrently

with her ingestion of an unknown drug. Id. at 166-67 & n.1. Therefore, the jury charge

authorized a conviction under a “combination” theory not alleged in the indictment. Id. at

170-71. Crenshaw - 12

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. See Lewis, 815 S.W.2d at 562. The jury is

presumed to have understood and followed the court’s charge, absent evidence to the

contrary. Hutch, 922 S.W.2d at 172. Therefore, we presume that the jury convicted

Appellant of DWI pursuant to the subjective theory of intoxication.

Moreover, the per se definition of intoxication was not an incorrect or misleading

statement of a law that the jury must understand in order to implement the commands of

the application paragraph. See Plata, 926 S.W.2d at 302. Both definitions of

“intoxicated” tracked the language of the statutory definitions and are, therefore, correct

statements of the law. Additionally, the definitions of intoxicated are not mutually

exclusive, and there is considerable overlap between the two. See Mechler, 153 S.W.2d

at 441. As such, evidence supporting a finding that a defendant was intoxicated under

one definition may also be used to prove intoxication under the other. Id. (explaining that

the defendant’s intoxilyzer results “tend to make it more probable that the defendant was

intoxicated at the time of driving under both the per se and impairment definitions of

intoxication”).

Finally, this case does not involve a variance as Appellant alleges. In a variance Crenshaw - 13

situation, “the State has proven the defendant guilty of a crime, but has proven its

commission in a manner that varies from the allegations in the charging instrument.”

Gollihar, 46 S.W.3d at 246. Although the State presented evidence of Appellant’s BAC

and referred to the per se theory of intoxication in closing arguments, the State did not

prove the commission of DWI in a manner that varied from the allegations in the charging

instrument. Instead, due to the evidentiary nature of the intoxication definitions and the

overlap between the two, the BAC evidence made it more probable that Appellant was

subjectively impaired at the time he was driving, thereby supporting the theory alleged in

the information and applied to the facts in the charging instrument. See Mechler, 153

S.W.2d at 441.

V. CONCLUSION

Appellant was convicted under the subjective theory of intoxication as alleged in

the information. Including the per se definition of intoxication in the abstract portion of

the jury charge did not expand the allegations against Appellant. We reverse the

judgment of the court of appeals and remand the case for further proceedings consistent

with this opinion.

Hervey, J.

Delivered: September 26, 2012

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