You have found the defendant, [name], guilty of [driving/assembling or operating an amusement ride] while intoxicated. The state has accused the defendant of having been convicted of [or placed on deferred adjudication for] [offense] once before and of being in possession of an open container of alcohol.

The defendant has pleaded that these accusations are both “not true.”

The range of punishments from which you must assess the defendant’s punishment depends on whether you find the state has proved the prior offense accusation, the open container accusation, or both.

Relevant Statutes—Punishment If Accusation of Prior Offense Proved “True”

If the state proves the accusation of a prior offense is true, this offense is punishable by—

1. a term of confinement in the county jail for no less than thirty days and no more than one year, or
2. a term of confinement in the county jail for no less than thirty days and no more than one year and a fine of no more than $4,000.

If you find the prior offense accusation is true, you need not determine if the open container accusation is true, and you must decide the defendant’s punishment for [driving/assembling or operating an amusement ride] while intoxicated under element 1 or 2.

Relevant Statutes—Punishment If Accusation of Prior Offense “Not True” and Accusation of Open Container Proved “True”

If the state does not prove the accusation of a prior offense is true, you must next decide whether the state has proved the open container accusation.

If the state proves the accusation of an open container is true, this offense is punishable by—

3. a term of confinement in the county jail for no less than 6 days and no more than 180 days, or
4. a term of confinement in the county jail for no less than 6 days and no more than 180 days and a fine of no more than $2,000.

If you find the prior offense accusation is not true and you find the open container accusation is true, you must decide the defendant’s punishment for [driving/assembling or operating an amusement ride] while intoxicated under element 3 or 4.

Relevant Statutes—Punishment If Both Accusation of Prior Offense and Accusation of Open Container “Not True”

If the state does not prove either the accusation of a prior offense or the accusation of an open container is true, this offense is punishable by—

5. a term of confinement in the county jail for no less than seventy-two hours and no more than 180 days, or
6. a term of confinement in the county jail for no less than seventy-two hours and no more than 180 days and a fine of no more than $2,000.

If you find both the prior offense accusation and the open container accusation are not true, you must decide the defendant’s punishment for [driving/assembling or operating an amusement ride] while intoxicated under element 5 or 6.

Definitions

Open Container

“Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

Alcoholic Beverage

“Alcoholic beverage” means alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted.

Burden of Proof

The state must prove, beyond a reasonable doubt, the prior offense and open container accusations.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, three elements of its accusation of a prior conviction. The elements are that—

1. the defendant was [convicted/placed on deferred adjudication] on [date], in Cause No. [number] in the [County/District] Court of [county] County, [state]; and
2. this [conviction/deferred adjudication] was for [driving while intoxicated/flying while intoxicated/driving while intoxicated with a child passenger/intoxication assault with a motor vehicle/intoxication manslaughter with a motor vehicle/boating while intoxicated/operating or assembling an amusement ride while intoxicated/an offense under article 6701l-1, Revised Civil Statutes, as that law existed before September 1, 1994/an offense under article 6701l-2, Revised Civil Statutes, as that law existed before January 1, 1984/criminally negligent homicide under section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle/an offense of the laws of another state that prohibit the operation of a motor vehicle while intoxicated]; and
3. this [conviction/deferred adjudication] became final before the commission of the offense for which the defendant was convicted in this trial.

You must all agree on elements 1, 2, and 3 listed above.

If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the prior offense accusation is “true,” and you do not need to determine whether the defendant had an open container of alcohol. In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defendant for no less than thirty days and no more than one year, or
2. the term of confinement in the county jail to be imposed on the defendant for no less than thirty days and no more than one year and a fine of no more than $4,000.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the prior offense accusation is “not true.” You must next determine whether the state has proved, beyond a reasonable doubt, two elements of its accusation of an open container. The elements are that—

4. the defendant had an open container of an alcoholic beverage in his immediate possession, and
5. the defendant did this at the time of [driving/assembling or operating an amusement ride] while intoxicated.

You must all agree on elements 1 and 2 listed above.

If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must find the open container accusation is “true.” In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defendant for no less than 6 days and no more than 180 days, or
2. the term of confinement in the county jail to be imposed on the defendant for no less than 6 days and no more than 180 days and a fine of no more than $2,000.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the open container accusation is “not true.” In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defendant for no less than seventy-two hours and no more than 180 days, or
2. the term of confinement in the county jail to be imposed on the defendant for no less than seventy-two hours and no more than 180 days and a fine of no more than $2,000.

VERDICT—ACCUSATION OF PRIOR OFFENSE “TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of a prior offense has been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson

VERDICT—ACCUSATION OF PRIOR OFFENSE “NOT TRUE” AND ACCUSATION OF OPEN CONTAINER “TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of a prior offense has not been proved true and that the accusation of an open container has been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson

VERDICT—ACCUSATION OF PRIOR OFFENSE AND OF OPEN CONTAINER “NOT TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], but finding that both the accusation of a prior offense and of an open container have not been proved true, assess his punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson