State v. Carter

780 S.W.2d 811, 1989 Tex. App. LEXIS 2315, 1989 WL 102147
CourtCourt of Appeals of Texas
DecidedSeptember 7, 1989
DocketNo. A14-88-1033-CR
StatusPublished
Cited by5 cases

This text of 780 S.W.2d 811 (State v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carter, 780 S.W.2d 811, 1989 Tex. App. LEXIS 2315, 1989 WL 102147 (Tex. Ct. App. 1989).

Opinion

OPINION

DRAUGHN, Justice.

The State of Texas appeals from the trial court’s order granting appellee’s motion to quash the state’s information; and in doing so, it raises another variation of the issue as to what degree of specificity is required to allege the offense of driving while intoxicated so as to provide a defendant with sufficient notice of that offense under Tex. Rev.Civ.Stat.Ann. art. 6701Z —1(b).

The state’s information in this case alleged that appellee did “unlawfully while intoxicated, drive and operate a motor vehicle in a public place, to wit: a public road and highway.” The trial court granted ap-pellee’s motion to quash this information on the grounds that the state had failed to provide appellee with adequate notice of the charged offense. The court, in effect, ruled that the state must allege both of the two definitions of “intoxicated” contained in the statute, which are, that he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into his body; or that he had an alcohol concentration of 0.10 or more. Tex. Rev.Civ.Stat.Ann. art. 6701Z-1(a)(2)(A), (B) (Vernon Supp.1989).

The only relevant facts are that appellee Carter was arrested for driving while intoxicated. At the police station, he admitted during a video interview that he had ingested some pills, but did not indicate in any manner what type they were. He also submitted to a breath test which resulted in a 0.12 reading. The information, previ[812]*812ously referred to, was subsequently filed against him.

During the hearing on his motion to quash the information, the prosecutor testified that the state wished to proceed against the appellee on the basis of the results from the breathalyzer test. When asked by the Court if the state would amend its information so as to plead both definitions of intoxication, the state indicated that it would not because it did not plan to use a combination of alcohol and drugs to support its information. Specifically, the state’s representative said:

“... We don’t plan to use any combination of drugs or alcohol in our case in chief, just the breath test.” .

The state, however, refused to waive any rebuttal testimony involving drugs because it lacked knowledge as to what testimony the appellee might offer if he took the stand. The trial court then granted the motion to quash the information on the grounds that the state had failed to provide appellee with adequate notice of the charged offense.

The state asserts on appeal that the trial court abused its discretion in quashing the information because (1) intoxication is neither an act nor the gravamen of the offense of driving while intoxicated, and the definition of intoxicated is merely a matter of proof which the state need not allege; and (2) the D.W.I. statute is not unconstitutionally vague.

The state argues under its first point that being “intoxicated” under the D.W.I. statute is not an act or conduct but a condition. The definition of intoxicated is, therefore, merely a matter of proof which it need not allege in its charging instrument. The state concedes that the courts of appeals are split on the issue of whether intoxication constitutes an act requiring the definition to be pled or a condition and thereby simply a matter of proof which need not be pled. Intoxication as a condition is reflected in the following cases: McGinty v. State, 740 S.W.2d 475 (Tex.App.—Houston [1st Dist.] 1987, pet. ref’d); Gowin v. State, 760 S.W.2d 672 (Tex.App.—Tyler 1988, no pet.); Barraza v. State, 733 S.W.2d 379 (Tex.App.—Corpus Christi 1987, pet. granted).

Other courts subscribe to the act or conduct theory of intoxication and require that the state plead the definition of intoxication on which they are relying. Russell v. State, 710 S.W.2d 662 (Tex.App.—Austin 1986, pet. ref’d); Walker v. State, 751 S.W.2d 268 (Tex.App.—San Antonio 1988, no pet.); Solis v. State, 742 S.W.2d 873 (Tex.App.—San Antonio 1987, pet. ref’d); Leach v. State, 770 S.W.2d 903 (Tex.App.—Corpus Christi May, 1989).

While we generally agree that intoxication is a condition rather than an act, we must defer to the Court of Criminal Appeals as to the pleading requirements concerning the definition of intoxication in the D.W.I. statute. Garcia v. State, 747 S.W.2d 379 (Tex.Crim.App.1988). In Garcia, the Court of Criminal Appeals held that when a charging instrument alleges an offense under the D.W.I. statute with intoxication defined under art. 6701Z -1(a)(2)(A) it must allege the intoxicant singularly, or in “disjunctive” combination.1 Garcia at 381. In other words, when the state seeks to proceed on the basis that the defendant has lost the normal use of his mental and physical faculties due to the ingestion of alcohol, a controlled substance, a drug, or a combination, it must allege the intoxicant singularly or in disjunctive combination. The Court in laying down the distinction between those definitions that must be pled and those that need not be, stated:

“... if a statute includes multiple definitions, the specific definition to be relied on by the state does not have to be pled unless it involves an act or omission of the appellant.” Id.

[813]*813The state, however, views Garcia as standing for the limited conclusion that when the state pleads part of a definition, it must plead the whole definition when challenged. The appellee, on the other hand, views Garcia as standing for the proposition that the state must plead one or the other of the two definitions (or presumably both, if appropriate) but that it cannot survive a motion to quash if it pleads only that the defendant did unlawfully drive while intoxicated in a public place. We agree with neither position.

We view Garcia as holding that if the state intends to proceed against a defendant under sec. 1(a)(2)(A) of the D.W.I. statute on the basis that the defendant was intoxicated because he had lost the use of his mental and physical faculties due to the ingestion of alcohol, a controlled substance, a drug, or a combination thereof, it must name the intoxicant or combination thereof in the charging instrument. Otherwise, the defendant does not have proper notice of the charge against him.

However, we do not perceive Garcia as holding that if the state is proceeding under sec. 1(a)(2)(B) of the D.W.I. statute that the defendant was intoxicated because he had an alcohol concentration of 0.10 percent or more, it must also allege that definition. If that was the intent of Garcia, it is not clear from the opinion. What is clear is that this definition of intoxication is just that, a definition.

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Related

State v. Carter
810 S.W.2d 197 (Court of Criminal Appeals of Texas, 1991)
Sullivan v. State
807 S.W.2d 342 (Court of Appeals of Texas, 1991)

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Bluebook (online)
780 S.W.2d 811, 1989 Tex. App. LEXIS 2315, 1989 WL 102147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carter-texapp-1989.