Chapter 49
Intoxication Offenses
49.25 Instruction—Intoxication Assault
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of intoxication assault.
Relevant Statutes
A person commits the offense of intoxication assault if the person, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.
[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].
[Include the following if an instruction on causation is appropriate but no issue of concurrent causation is raised by the facts.]
A person who is intoxicated causes serious bodily injury to another by reason of that intoxication by accident or mistake if the intoxication causes the serious bodily injury of the other. Intoxication causes the serious bodily injury of another if that serious bodily injury would not have occurred but for the person’s intoxication.
[Include the following if the facts raise an issue concerning concurrent causation.]
A person who is intoxicated causes serious bodily injury to another by reason of that intoxication if the serious bodily injury would not have occurred but for the intoxication, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the serious bodily injury and the intoxication of the person was clearly insufficient.
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” meansthe 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.
Serious Bodily Injury
“Serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- the defendant operated a motor vehicle in [county] County, Texas, on or about [date]; and
- the defendant did this in a public place; and
- the defendant did this while intoxicated,
by either—
- 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
- having an alcohol concentration of 0.08 or more; and
- the defendant, by reason of the intoxication, caused serious bodily injury to [name of victim] by accident or mistake.
[Include the following if the jury was instructed in the relevant statutes unit on concurrent causation.]
The defense asserts that the defendant is relieved of responsibility for the serious bodily injury of [name of victim] because [describe concurrent cause] may have contributed to causing [name of victim]’s serious bodily injury. Therefore, to determine that the defendant by reason of intoxication caused the serious bodily injury of [name of victim], you must find that either—
- [concurrent cause] did not contribute to causing the serious bodily injury of [name of victim]; or
- [concurrent cause] contributed to causing the serious bodily injury of [name of victim], but [concurrent cause] was clearly insufficient to cause the serious bodily injury of [name of victim]; or
- [concurrent cause] contributed to causing the serious bodily injury of [name of victim], but the intoxication of the defendant was clearly sufficient to cause the serious bodily injury of [name of victim].
[Continue with the following.]
You must all agree on elements 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, 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 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.]
By Accident or Mistake. It has long been settled law that the requirement that the person have caused the death or injury of another “by accident or mistake” means that the person need not have had criminal intent or any culpable mental state.
Under pre-1974 law, the court of criminal appeals explained:
[T]he terms “accident” and “mistake” . . . not having been defined in the statute . . . are there used in the sense ordinarily understood and mean “unintentional.” They are often used in conjunction with each other and interchangeably. The phrase “mistake or accident” is found [elsewhere in the statutes], and it seems that it has never been found necessary to further define the meaning of such phrase, the words composing the phrase being common and ordinary ones the meaning whereof being easily and readily understood.
Johnson v. State, 216 S.W.2d 573, 578 (Tex. Crim. App. 1949) (citation omitted). Under Johnson, a trial court’s failure to define the terms is not error. Cave v. State, 274 S.W.2d 839, 842 (Tex. Crim. App. 1955). See also Druery v. State, 225 S.W.3d 491, 509 (Tex. Crim. App. 2007). (“Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”) (quoting King v. State, 553 S.W.2d 105, 107 (Tex. Crim. App. 1977)).
The Committee has for some time taken the view that these terms add nothing to the state's burden of proof but simply reflect what is not required, and thus the Committee has historically chosen to omit these terms from the application section.
Appellate courts consistently characterize these terms as “statutory elements” of the offense. See, e.g., Aldrich v. State, 296 S.W.3d 225, 230–31 (Tex. App.—Fort Worth 2009, pet. ref’d); Wooten v. State, 267 S.W.3d 289, 294–95 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); accord Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009) (construing section 49.07). As such, they should arguably be included in both the statutory definition and the application paragraph. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (a hypothetically correct jury charge states “the statutory elements of the offense . . . as modified by the charging instrument”). The Committee recommends no definition or further explanation of these terms be included except as required by statute.
Necessity Defense Language. The necessity defense language is included in the instruction at CPJC 49.16 in this chapter only. It could, of course, be modified and incorporated into the above instruction if the defense applies. See also the necessity defense comment at CPJC 49.10 and chapter 9.
Comment
Intoxication assault is prohibited by and defined in Tex. Penal Code § 49.07. The definition of “public place” is based on Tex. Penal Code § 1.07(a)(40). The definition of “intoxicated” is based on Tex. Penal Code § 49.01(2). The definition of “alcohol concentration” is based on Tex. Penal Code § 49.01(1).
Definition of Serious Bodily Injury. Tex. Penal Code § 49.07(b) provides an offense-specific definition for the term serious bodily injury that differs from the general definition in Tex. Penal Code § 1.07(a)(46) in two ways. First, section 49.07(b) omits the term bodily with reference to the nature of the injury. Second, it omits the term death as a potential form of serious bodily injury, which makes sense because intoxicated conduct causing death would be prosecutable as intoxication manslaughter. Because of the omission of the term bodily, a divided Committee concluded that the term should not be included in the definitions unit in the charge. Some members believed that the term serious bodily injury as defined by section 49.07(b) necessarily includes and is limited to “bodily injury.” Some courts may choose to include the Tex. Penal Code § 1.07(a)(8) definition of “bodily injury” and even to include the term bodily in the definition of serious bodily injury. (For example, “‘Serious bodily injury’ means bodily injury that creates a substantial risk ….”)