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

I. INFORMATION/CHARGING INSTRUMENT
A. MENTAL OR PHYSICAL FACULTIES
Herrera v. State, 11 S.W.3d 412 (Tex.App.-Houston [1't Dist.] 2000, pet. ref'd).
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. refd).
Use of language "/oss of normal use of mental and physicalfaculties" in charging instrument is
proper & fhe Sfafe need not elect because fhe 'and" becomes "or" in the jury instructions.
B. "PUBLIC PLACE'' IS SPECIFIC ENOUGH
Rav v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref'd).
Kinq v. State ,732 S.W .2d 796 (Tex.App.-Fort Worth 1987, pet. refd).
Allegation of "public place" is a sufficiently specific description.
G. STATE DOES NOT HAVE TO SPECIFYWHICH DEFINITION OF INTOXICATION
IT IS RELYING ON IN THE INFORMATION
State v. Barbernell, 257 S.W.3d 248 (Tex.Crim.App.2008).
The State does nof have to altege in the charging instrument which deftnition of "intoxicated" the
defendant is going to be prosecuted under. The definitions of "intoxicated" do not create two
manners and means of commifting DWI. The conduct proscribed is the act of driving while
intoxicated. The two definitions only provide alternative means by which fhe Sfafe can prove
intoxication and therefore are not required to be alleged in the charging instrument. The Court
found that its holding in State v. Carter. 870 S. W.2d 197 (Tex.Crim.App.1991) was flawed, and it
was explicitly overruled by this opinion. This will greatly simplify charging language and may do
away with the need for synergistic charges. Bottom line, when you say "intoxicated," yotJ've said
it all.
D. NO MENTAL STATE NECESSARY IN DWI CHARGE
1. PRE 549.04
Ex Parte Ross , 522 S.W .2d 214 (Tex.Crim.App. 1975).
Hardie v. State, 588 S.W.2d 936 (Tex.Crim.App. 1979).
2. POST 549.04
Lewis v. State, 951 S.W.2d 235 (Tex.App.-Beaumont 1997, no pet.).
Reed v. State, 916 S.W.2d 591(Tex.App.-Amarillo, 1996, pet. ref'd).