The state accuses the defendant of having committed the enhanced offense of driving while intoxicated.

Relevant Statutes

A person commits the enhanced offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place and that person has previously been convicted one time of [an offense of intoxication manslaughter under Texas Penal Code section 49.08/an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of intoxication manslaughter under Texas Penal Code section 49.08].

[Include the following if the state relies on a prior conviction in another state.]

[Offense] is an offense under the laws of another state that contains elements substantially similar to the elements of intoxication manslaughter under Texas Penal Code section 49.08.

[Include the following if raised by the evidence.]

If a person by the use of medication renders himself more susceptible to the influence of alcohol than he otherwise would have been and by reason thereof became intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the use of alcohol alone.

[Include the following if raised by the evidence.]

[Substance] is a [controlled substance/drug/dangerous drug].

Definitions

Public Place

“Public place” means any place to which the public or a substantial group of the public has access. The term includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Intoxicated

“Intoxicated” means either (1) not having the normal use of mental or 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, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more.

Alcohol Concentration

“Alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine.

Motor Vehicle

“Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

[Include the following if there is no stipulation to the prior conviction and therefore evidence concerning that conviction was introduced.]

Evidence of Possible Prior Conviction of Defendant

You have heard evidence that the defendant may have been convicted of a prior offense. This evidence may be considered by you only in determining whether the state has proved the fourth element of the offense charged, consisting of a prior conviction.

This evidence may not be used for any other purpose in determining the guilt or innocence of the defendant on this charge. For example, it may not be used to suggest that, because the defendant committed an intoxication offense in the past, he is more likely to have committed the presently charged intoxication offense.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—

1. the defendant operated a motor vehicle in [county] County, Texas, on or about [date]; and
2. the defendant did this in a public place; and
3. the defendant did this while intoxicated, by either—
   1. 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; or
   2. having an alcohol concentration of 0.08 or more; and
4. the defendant was convicted on [date], in Cause No. [number] in the [County/District] Court of [county] County, [state], for the offense of [offense].

[If the defendant has stipulated to the prior conviction, insert the stipulation here and include the following.]

The defendant has stipulated to the prior manslaughter conviction, the fourth element of the offense charged. Because this element is uncontested, no evidence regarding the prior conviction is necessary. You are hereby directed to find that element 4 of this felony DWI offense is established.

This prior conviction may not be used for any other purpose in determining the guilt or innocence of the defendant on this charge. For example, it may not be used to suggest that, because the defendant committed this intoxication offense in the past, he is more likely to have committed the presently charged intoxication offense.

[If the defendant has stipulated to the prior conviction, eliminate the option that includes element 4 from each of the following paragraphs.]

You must all agree on elements [1, 2, and 3/1, 2, 3, and 4] listed above, but you do not have to agree on the method of intoxication listed in elements 3.a and 3.b above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements [1, 2, and 3/1, 2, 3, and 4] listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the [three/four] elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]