Driving While Intoxicated Case Law Update - Texas District ...

V. WHEN CHARGE SPECIFICALLY USES SUBJECTIVE DEFINITION OF
INTOXICATION AND NOT PER SE DEFINITION, THE PER SE DEFINITION
SHOULD NOT BE IN JURY INSTRUCTION
Crenshaw v. State , 2011 WL 321 1258 (Tex.App.-Fort Worth 2011 , pdr filed).
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
errar. The Court of Appeals held that where the State has elected to narrow ds 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. ln its
dtscusslon 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.
XXII. JURY ARGUMENT
A. PERMISSIBLE
1. DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAIL
Nunez v. State, 2007 WL 1299241 (Tex.App.-Fort Worth 2007, no pet.) (not designated for
publication).
Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988).
It is proper to argue that defendant failed to blow into instrument because "he knew he would fail."
2. DEFENDANT'S FAILURE TO DO FST'S ON VIDEO
Emiqh v. State, 916 S.W.2d 71 (Tex.App.-Houston [1st Dist] 1996, no pet.).
Prosecutors referring to defendant's failure fo do FSIs on the station house videotape was not a
comment on violation of defendant's privilege against self-incrimination.
3. DEFENDANT'S REFUSAL TO DO ANYTHING (i.e. FST'S, BT)
Castilfo v. State, 939 S.W.2d754 (Tex.App.-Houston [14th Dist.] 1997 pet. ref'd).
Arguments that jurors should not reward defendant "for doing nothing" and that they should not send
a /nessage that it's 'okay to refuse to do everything," both constituted a proper plea for law
enforcement and a proper response to defense argument that asked jurors not to punish defendant
for refusing to do unreliable fesfs.
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