Hervey, J., delivered the opinion of the Court in which Keasler, Alcala, Richardson, Newell, and Walker, JJ., joined.
Burt Lee Burnett was charged with driving while intoxicated after he rear-ended another vehicle. The State alleged that Burnett was intoxicated "by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, and any other substance into his body...." The jury charge included that language in the abstract and application portions of the charge. Burnett objected to including the entire "loss of faculties" statutory definition in either portion of the charge because the evidence showed that, if he was intoxicated, it was only due to alcohol, not anything else. His objection was overruled, and the jury convicted him.
On appeal, he made the same argument: the jury should have been instructed that "intoxication" only means "not having the normal use of mental or physical faculties by reason of the introduction of alcohol...."
Burnett rear-ended a vehicle occupied by Michael Bussey and Nathan Chappa. After the wreck, Bussey saw Burnett get out of his car and "kind of stagger" to his
Officer Clinton Coapland was the first to arrive on scene. When he made contact with Burnett, Burnett's speech was slurred. He also had to ask Burnett the same questions multiple times. When Coapland leaned towards Burnett to hear him better, Coapland smelled the faint odor of alcohol, but he did not see that Burnett's eyes were glassy or bloodshot. Coapland radioed for backup. Once Officer William Allred arrived, he began to secure the scene while Coapland began his DWI investigation. Coapland asked Burnett if he had been drinking and whether he would consent to taking standard field sobriety tests (SFSTs). Burnett said that he had not been drinking and consented to take the tests. He showed signs of intoxication during the horizontal-gaze nystagmus test (HGN test), the walk-and-turn test, and the one-leg-stand test.
The State charged Burnett with Class B misdemeanor DWI and alleged that he was intoxicated "by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into his body...."
Burnett filed a motion to suppress, arguing that the officers should not be permitted to testify as to what type of pills they found because they were not drug recognition experts (DREs). The trial court agreed and ruled that the officers were not allowed to testify that they thought the pills were hydrocodone. The next day, however, the issue of the pills came up again. During this discussion, the State told Burnett and the court that there was video footage from the scene during which Coapland, Allred, and Burnett spoke about the pills. The video showed that, after Coapland found the pills in Burnett's jacket, he gave them to Allred, who said that the pills looked like hydrocodone. Allred asked Burnett whether he had a prescription for the medication, and Burnett responded that he did. The State argued that the evidence of Burnett's pill possession should be admitted into evidence as same-transaction contextual evidence.
Burnett raised two issues in the court of appeals. In his first point of error, he argued that the trial court erroneously admitted evidence that Burnett was in possession of hydrocodone. Burnett v. State, 488 S.W.3d 913, 916 (Tex. App.-Eastland 2016). In his second point of error, he asserted that the trial court erroneously instructed the jury that it could convict him if it found that he was intoxicated by reason of the introduction of anything other than alcohol into his system. Id. In addressing his second issue, the court of appeals explained that it is insufficient for a charge to incorporate only the allegations in the charging instrument; "it must also apply the law to the facts adduced at trial." Id. at 923 (citing TEX. CODE CRIM. PROC. art. 36.14) (quoting Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004)). It next turned to our decision in Ouellette, in which we suggested that it could be error to submit the full "loss of faculties" definition of intoxication if the evidence shows only alcohol intoxication. Id. at 923. According to the court, Ouellette is distinguishable from the facts of this case because, in this case a rational juror could not have reasonably inferred that Burnett ingested drugs, unlike in Ouellette where the evidence permitted such an inference. Id.
Similar to the facts of this case, Ouellette rear-ended another car and was charged with DWI "by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances[.]"
When Mabe confronted Ouellette about the pills, Ouellette said that she recognized two of them as Soma and Darvocet, but that she did not know what the third one was. Id. at 869. According to her, she had a prescription for all of the medications and had not taken any of them in over a month. Id. To backup her story, she offered to provide a blood sample, but she later withdrew that offer after Mabe told her that the sample would also be checked for its alcohol concentration. Id. Mabe testified that both alcohol and Soma are central nervous-system depressants (CNS depressants) that can cause the horizontal-gaze nystagmus like the one he observed while administering the HGN field-sobriety test. Id. During closing arguments, the State told the jury that it could find that Ouellette was intoxicated from drinking alcohol, from the Soma found in her car, or from a combination of both alcohol and the prescription medication. Id. The jury convicted Ouellette.
Ouellette appealed her case to the Austin Court of Appeals, arguing that the evidence showed that, if she was intoxicated, it was due to only alcohol. Id. The court of appeals rejected her claim, however, concluding that a jury could have found that her intoxication was caused by the Soma found in her car. Id.
After losing in the court of appeals, Ouellette filed a petition for discretionary review in this Court. We granted it to decide whether it was proper for the charge to authorize Ouellette's conviction under the theory that she was intoxicated by a drug or a combination of alcohol and a drug, although the only evidence of drug intoxication was the prescription medications found in her car. Id. In our analysis, we first noted that the DWI statute focuses on whether a person is intoxicated while operating a motor vehicle in a public place, not the specific substance that caused a person to become intoxicated. Id. at 869. We further explained that trial courts are required to instruct juries regarding "law applicable to the case," which includes the elements of the offense and any statutory definitions that affect the meaning of those elements.
The circumstantial evidence indicated that Ouellette showed signs of having ingested a CNS depressant and that alcohol and Soma are both CNS depressants. We affirmed the judgment of the court of appeals, summarizing that,
Id.
The State argues that a jury charge should include the entire "loss of faculties" definition, irrespective of the trial evidence. According to it, the substance that caused a person to become intoxicated is purely an evidentiary issue because the focus is on only whether the defendant was intoxicated, not the intoxicant. For support, the State relies on Judge Cochran's dissenting opinion in Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).
State's Brief on the Merits at 21.
Burnett responds that, while the State in its charging instrument need only allege that the defendant was "intoxicated" and is permitted to track the language of the entire statutory definition, it is error to give to the jury portions of a statutory definition that are not supported by the evidence. He argues that the rule urged by the State would invite the exact type of speculation that we condemned in Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007), and that such guessing could ensnare thousands of innocent Texans, such as fatigued drivers and those with naturally bad balance, even though they never ingested any substance as required to prove intoxication. He also contends that the State misreads Judge Cochran's dissent in Gray, and that she was "lament[ing] the Court's holding in Garcia which required the State to plead the specific intoxicant, and then allowed a defendant to claim the State proved the incorrect intoxicant...." Appellant's Amended Brief on the Merits at 23 (citing Gray, 152 S.W.3d at 136). He also points out that, in Gray, the majority concluded that, although the State specifically pled alcohol intoxication and presented proof that Gray was intoxicated by alcohol, the synergistic-effect instruction given in that case was not erroneous because there was also evidence that Gray took anti-depressants and that those anti-depressants made him more susceptible to becoming intoxicated by alcohol.
We agree with Burnett that the State's reliance on Judge Cochran's dissent is misplaced. Our reading of Judge Cochran's opinion shows that she was in fact discussing the State's pleading burden, not instructions in a jury charge. This is evident from the passage directly following the excerpt provided by the State,
Gray, 152 S.W.3d at 136 (Cochran, J., dissenting).
We also decline the State's invitation to hold that the entire statutory
The State argues that, under this rationale, the jury was not permitted to consider the possibility that the defendant was intoxicated from "any other substance." We disagree. The jury is permitted to consider whether a defendant was intoxicated from "any other substance" when there is evidence that the defendant ingested a substance that caused him to become intoxicated or there is sufficient evidence for a rational juror to infer such. But, as we will explain, the record here does not support that Burnett ingested a substance other than alcohol.
The evidence here shows that Burnett was intoxicated because he had been drinking alcohol. The witnesses and police could smell it, and Burnett showed signs of intoxication during three SFSTs, which as Coapland testified, is consistent with a person that has lost his mental or physical faculties due to the imbibement of alcohol. Burnett was also observed to have slurred speech and glassy and bloodshot eyes. Police later found hydrocodone pills in Burnett's vehicle, but there is no evidence in this record as to what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the symptoms of intoxication Burnett was experiencing were also indicative of intoxication by hydrocodone. These are critical elements that were present in Ouellette but not in this case.
In Ouellette, the arresting officer asked Ouellette about the pills that were found in her vehicle, and she expressly identified two of them. Here, Burnett did not tell the officers that the pills were hydrocodone, although Allred told Coapland that he thought they were hydrocodone. Allred asked Burnett whether he had a prescription for the medication he found,
We agree with the court of appeals that Ouellette is distinguishable from the facts of this case and that, here, the jury charge was erroneous because it did not apply the law to the facts produced at trial.
The court of appeals held that Burnett was caused some harm by the erroneous jury charge in this case. Burnett, 488 S.W.3d at 925. According to it, Burnett was harmed because the pill-related evidence became an integral part of the trial even though there was insufficient evidence to submit that theory of intoxication to the jury. Id. We do not review its harm analysis, however, because we did not grant review on that issue. Juarez v. State, 308 S.W.3d 398, 406 (Tex. Crim. App. 2010) (judgment of the court of appeals finding harmful error should be affirmed when this Court agrees that the jury charge was erroneous but did not grant review of the lower court's harm analysis).
We affirm the judgment of the court of appeals.
Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
Richardson, J., filed a concurring opinion.
The issue presented to this Court for review is a narrow one — whether the court of appeals misapplied this Court's decision in Ouellette v. State
In both this case and in Ouellette, the offense charged was driving while intoxicated due to the introduction of "alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into [the] body." In both cases, evidence was introduced at trial that the appellants had pills in their possession, both appellants admitted to possessing a prescription for medication, and in both cases, the jury charge tracked the charging instrument. However, despite these similarities, Ouellette is inapplicable here. The jury charge in this case erroneously included the full statutory definition of intoxication, and I write separately to explain why.
In Ouellette, this Court held that, "[a]lthough there was no direct evidence that the defendant consumed the drug, there was evidence from which a rational juror could have found that the defendant did so."
More importantly, I point out that, in Ouellette, the appellant did not object to evidence of the pills, she did not object to her own identification of the pills as Soma — a prescription medication, and she did not object to the arresting officer testifying that Soma affects a person's central nervous system. Since this unobjected-to evidence
In this case, Appellant denied having had any alcohol, he neither confirmed nor denied having taken any pills, he did not identify the pills as hydrocodone, there was no expert testimony regarding the pills being hydrocodone, and the officer admitted that he was not qualified to testify regarding drug impairment. Therefore, the court of appeals correctly held that evidence of the pills was inadmissible. Even though the evidentiary issue is not before us, I do not believe its impact on the jury charge issue can be separated. Moreover, in this case, unlike in Ouellette, Appellant filed a motion to suppress evidence of the pills, he filed a motion in limine to prevent any reference to the pills, during trial he objected to any evidence of the pills coming in, and he objected to the officer's identification of the pills as hydrocodone. Had his objections been sustained and had evidence related to the pills been excluded, it is clear that the full intoxication charge would have been erroneous.
Having found that the trial court erred by including the full statutory definition of intoxication in the jury charge, the court of appeals determined that Appellant suffered "some harm" under Almanza v. State
With these comments, respectfully, I concur.
Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.
I would hold that the jury instruction regarding intoxication by a controlled substance was proper because the evidence was sufficient to show that appellant was under the influence of hydrocodone, an intoxicating drug. The Court contends that the evidence is insufficient to show that some of the pills possessed by appellant were hydrocodone. I disagree. The video of the stop was played for the jury. Officer Coapland retrieved a bag of pills from Appellant's pocket and asked Appellant, "What's in the bag?" Appellant responded, "I don't know." Officer Coapland then handed the bag of pills to Officer Allred. Officer Allred verbally identified the pills as "hydrocodone."
The Court also contends that there is insufficient evidence that hydrocodone is an intoxicating substance. Again, I disagree. "Hydrocodone is the generic name for a common, widely distributed, opioid narcotic analgesic, which is produced in various combinations under brand names such as Lorcet, Lortab, and Vicodin."
The status of hydrocodone as an intoxicating substance makes Ouellette
I respectfully dissent.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
In order to prove the offense of driving while intoxicated (DWI), the State must present evidence to show that "[a] person... [was] intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE § 49.04(a). To prove the person was "intoxicated," the State must establish either that he had a blood alcohol concentration of 0.08 or more, TEX. PENAL CODE § 49.01(2)(B), or that he lacked "the normal use of mental or physical faculties by reason of the introduction of" an intoxicating substance — any intoxicating substance — including, but not limited to, alcohol. TEX. PENAL CODE § 49.01(2)(A).
The jury charge in the instant case gave the full definition of "intoxicated" in the abstract instructions of law. This included as intoxicating substances: "alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of
But not in this case. Here, there was some evidence that Appellant had been drinking. Though Appellant himself denied it, the arresting officer detected a faint odor of alcohol, as did both the driver and passenger of the car that Appellant rear-ended. So the application paragraph rightly included alcohol in its enumeration of intoxicating substances shown by the evidence to have potentially caused Appellant to lose the normal use of his mental or physical faculties. There was also evidence that Appellant had pills in his pocket. Presiding Judge Keller argues in her dissent, and I agree, that the evidence is sufficient to establish that some of these pills were hydrocodone. Dissenting Opinion at 88. I also agree with Presiding Judge Keller that the intoxicating effects of hydrocodone are sufficiently common knowledge that there is no need for expert testimony to establish that fact. Dissenting Opinion at 88-89. Hydrocodone, it should be emphasized, is both a controlled substance — Penalty Group 1 — and a drug. For these reasons, I agree with Presiding Judge Keller's conclusion that the trial court did not err to include, at least, "a controlled substance, a drug, [or] a combination of ... those substances" within the application paragraph's definition of intoxicants shown by the evidence in this particular case to have potentially been ingested by Appellant.
We cannot simply reverse the judgment of the court of appeals, however. That court held that the trial court committed two errors in this case. Besides concluding that there was jury charge error, the court
Because the Court instead affirms the judgment of the court of appeals, I respectfully dissent.
Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting) (emphasis removed) (footnotes omitted).
Ouellette, 353 S.W.3d at 870 (emphasis added); see Smithhart v. State, 503 S.W.2d 283, 286 (Tex. Crim. App. 1973). In Smithhart, we stated that,
Smithhart, 503 S.W.2d at 286 (citation omitted); see Paschall v. State, 285 S.W.3d 166, 181 (Tex. App.-Fort Worth 2009, pet. ref'd) (Dauphinot, J., dissenting) ("Slurred speech, constricted pupils, and swaying may indicate intoxication, but such evidence only goes to the element of lack of normal use. It is not, in and of itself, proof of introduction into the body of a drug or controlled substance or alcohol, a necessary element of intoxication that the State must prove.").
Burnett v. State, 488 S.W.3d 913, 923 (Tex. App.-Eastland 2016) (citations omitted).
