Otto v. State

173 S.W.3d 70, 2005 Tex. Crim. App. LEXIS 1354, 2005 WL 2374224

• Court: Court of Criminal Appeals of Texas
• Decided: September 28, 2005
• Docket: PD-1397-04
• Status: Published

Opinions

OPINION

PER CURIAM.

Adriane Otto was convicted of felony driving while intoxicated and sentenced to four years’ imprisonment. Otto appealed her conviction, alleging that the submitted concurrent cause instruction permitted a conviction on a theory not alleged in the indictment, namely, that her intoxication was caused by a combination of drugs and alcohol.

The Court of Appeals disagreed and held that the instruction did not conflict with the remainder of the charge and did not permit a conviction on an alternate theory not included in the indictment.¹

When the Court of Appeals issued its opinion in this case, it did so without the benefit of this Court’s recent opinion in Gray v. State.2 Therefore, we remand for the Court of Appeals to consider the effect of Gray, if any, on its reasoning and analysis in this case.

MEYERS, J., not participating. COCHRAN, J., filed a concurring opinion.

1 . Otto v. State, 141 S.W.3d 238, 241 (Tex.App.-San Antonio 2004).

2 . 152 S.W.3d 125 (Tex.Crim.App.2004).