Comment

The definition of “intoxication” in jury instructions in driving while intoxicated prosecutions is less influenced by the pleadings than has traditionally been the case.

In State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008), the court of criminal appeals made clear that a charging instrument for driving while intoxicated need no longer allege anything regarding the specific definitions of intoxication under Tex. Penal Code § 49.01(2). Under Barbernell, the charging instrument need only allege that the named accused “while operating a motor vehicle in a public place, was . . . intoxicated.” Barbernell, 257 S.W.3d at 249.

Consequently, which statutory options are properly included in the instructions will be determined by the evidence produced at trial and will be unaffected by the pleadings.

However, if the state alleges a particular theory of intoxication in the charging instrument (i.e., loss of normal use or per se intoxication), the application section of the jury charge should restrict the jury’s consideration only to that allegation and not the alternate. See Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App. 2012). In addition, the evidence will affect which intoxicants can be included in the first prong of the definition of intoxicated: “not having the normal use of 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 the body.” The application paragraph should reflect the evidence as actually presented in court, and the definition of intoxication should be limited to the evidence presented. Compare Burnett v. State, 541 S.W.3d 77 (Tex. Crim. App. 2017) (when evidence only supports intoxication by alcohol, submission of full definition in application paragraph was in error), with Ouellette v. State, 353 S.W.3d 868 (Tex. Crim. App. 2011) (submission of full definition of intoxication warranted by evidence).

Although the information or indictment need not allege a specific intoxicant listed in the definition provided by Tex. Penal Code § 49.01(2), the jury charge must account for what the evidence has shown. Section 49.01(2) lists specific intoxicants: “alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” The terms controlled substance, drug, and dangerous drug are statutorily defined, generally by reference to schedules and/or penalty groups. Therefore, consistent with the manner in which a court instructs the jury regarding a controlled-substance offense, if the state presents evidence that the defendant had a certain controlled substance, drug, or dangerous drug in their system, the trial court should instruct the jury that the substance in question “is a [controlled substance/drug/dangerous drug].” This is not a fact issue for a jury to decide because these substances, as a matter of law, are controlled substances, drugs, or dangerous drugs. See Black v. State, 491 S.W.2d 428, 431 (Tex. Crim. App. 1973), overruled on other grounds by Faulkner v. State, 549 S.W.2d 1, 4 (Tex. Crim. App. 1976); Cleveland v. State, No. 05-19-00515-CR, 2020 WL 2059912, at *1 (Tex. App.—Dallas Apr. 29, 2020, no pet.). Rather, the fact issues for the jury to decide are whether that substance was in fact in the defendant’s system and whether that substance caused them to lose the normal use of mental or physical faculties. Accordingly, each of the intoxication instructions in this chapter includes a definition to be used if the evidence raises the presence of a controlled substance, drug, or dangerous drug.