In a brand new case out by the Court of Criminal Appeals, the Court has declared that the state does not need to be specific on which theory or theories of intoxication they need to prove.
In order to find someone guilty of DWI, the State must prove that person was intoxicated. Intoxicated means not having the normal use of your mental faculties, not having the normal use of your physical faculties, or having an alcohol concentration of above .08 at the time of driving. (this is my simplified definition — so attorneys, don’t jump on me about it!)
In the past, the state would have to add into the charging document (information for misdemeanors, indictment for felonies), which of those three definitions of intoxication they wanted to prove.
The new case that came out says they no longer need to do this. Therefore, as someone defending themselves on a DWI charge, you will not know how the State plans to prove you were intoxicated until the trial begins. In reality, though, most cases a good attorney will have an idea. Always mental and physical faculties, and only .08 where breath tests are involved. Where it gets tricky is if someone blows under .08, but the state tries to use "retrograde extrapolation," to prove you were higher at the time of driving.
Here is the opinion:
Court of Criminal Appeals of Texas.The STATE of Texas
Stephen Gregory BARBERNELL, Appellee.
July 2, 2008.
On State’s Petition for Discretionary Review from the Ninth Court of Appeals Montgomery County.
Joseph Salhab, for Stephen Gregory Barbernell.
Marc Brumberger, for The State of Texas.
KEASLER, J., delivered the opinion for a unanimous Court.
*1 Stephen Gregory Barbernell was charged with DWI. The court of appeals affirmed the trial judge’s decision to grant Barbernell’s motion to quash due to the State’s failure to allege which definition of “intoxicated” that it intended to prove at trial.FN1 The court reasoned that intoxication is an act or omission and that the definitions of “intoxicated” provide for different means of commission.FN2 Because we hold that the definitions of “intoxicated” do not describe an act or omission, we reverse and vacate the judgment of the court of appeals and remand this case to the trial court.
FN1. Barbernell v. State, 221 S.W.3d 914, 917-18 (Tex.App.-Beaumont 2007).
FN2. Id. at 917.
I. Procedural History
FN3. TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).
FN4. TEX. PENAL CODE ANN. § 49.01(2)(A)-(B) (Vernon 2003).
(A) 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
(B) having an alcohol concentration of 0.08 or more.FN5
The information charging Barbernell alleged: “on or about April 30, 2005, in Montgomery County, Texas, Stephen Gregory Barbernell …, while operating a motor vehicle in a public place, was then and there intoxicated[.]”
Barbernell moved to quash the information because the State failed to allege the definition of “intoxicated” set out in Section 49.01(2) that it intended to prove at trial. In support of his motion, Barbernell relied on our 1991 decision in Carter v. State,FN6 which held that the State must allege which definition of intoxicated-“loss of faculties” or “per se” intoxication (i.e., alcohol concentration) FN7-that the State intends to prove at trial.FN8 Barbernell claimed that the information failed to provide him with adequate notice of the manner and means (i.e., the definition of “intoxicated” that the State intended to prove) in which he committed the offense. In response, the State argued that our 2004 opinion in Gray v. StateFN9 establishes that the definitions of “intoxicated” are not elements of DWI. After a brief hearing, the trial judge granted Barbernell’s motion to quash. The State then timely filed a notice of appeal.FN10
FN6. 810 S.W.2d 197 (Tex.Crim.
FN7. TEX. PENAL CODE ANN. § 49.01(2) (previously codified at TEX. REV. CIVIL STAT. art. 6701 l-(a)(2)).
FN9. 152 S.W.3d 125 (Tex.Crim.App.2004).
FN10. See TEX.CODE CRIM. PROC. art. 44.01(a)(1) (Vernon Supp.2005).
II. Court of Appeals
In the Beaumont Court of Appeals, the State argued that the judge erred in granting Barbernell’s motion to quash.FN11 In doing so, the State reasserted its reliance on our decision in Gray, while Barbernell continued to rely on Carter.FN12 Finding that Gray did not address Carter’s holding, the court of appeals, after reviewing our analysis of the elements of DWI in Gray, held that the element of “intoxicated” is an act or omission and that the definitions of “intoxicated” provide different manner or means to commit intoxication.FN13 Due to the State’s failure to allege the definition of “intoxicated” that it intended to prove at trial, the court held that the information did not sufficiently notify Barbernell of the charged offense.FN14 As a result, the court affirmed the trial judge’s decision to grant Barbernell’s motion to quash.FN15
FN11. Barbernell, 221 S.W.3d at 916.
FN13. Id. at 917.
FN15. Id. at 917-18.
*2 In a concurring opinion, Justice Horton noted that Carter is controlling authority.FN16 However, Justice Horton stated that he believed that the State was correct in asserting that the definitions of “intoxicated” are evidentiary matters, as opposed to manner and means of commission, and therefore do not need to be alleged in the charging instrument.FN17
FN16. 221 S.W.3d at 918 (Horton, J., concurring).
We granted the State’s petition for discretionary review to address the following issue: “Whether the manner of intoxication, either ‘loss of faculties’ or ‘alcohol concentration,’ is an element of the offense of driving while intoxicated which must be alleged in the charging instrument[.]”
Before we address this particular issue, we provide a general overview of the law concerning notice and our most recent cases addressing notice in relation to the offense of DWI. And because the State’s ground for review comes to us in light of our decision in Gray, we will also examine Gray’sdiscussion of the DWI statute.
The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense.FN18 “The charging instrument must convey sufficient notice to allow the accused to prepare a defense.” FN19 Toward that end, Chapter 21 of the Texas Code of Criminal Procedure governs charging instruments and provides legislative guidance concerning the requirements and adequacy of notice.FN20 With respect to informations, Article 21.21 sets out what facts must be included in an information and states, in part, “[t]hat the offense [must] be set forth in plain and intelligible words[.]” FN21 Additionally, an information must include everything that is necessary to be proved.FN22 An information is sufficient if it
FN18. Lawrence v. State, 240 S.W.3d 912, 916 (Tex.Crim.App.2007) (citing U.S. CONST.&n
bsp;amend. VI; TEX. CONST. art. I, § 10;Ferguson v. State, 622 S.W.2d 846, 849 (Tex.Crim.App.1981) (opinion on reh’g)); TEX. CONST. art. V, § 12(b); see also Cole v. Arkansas, 333 U.S. 196, 201 (1948).
FN19. Curry v. State, 30 S.W.3d 394, 398 (Tex.Crim.App.2000) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998)).
FN20. Moff v. State, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); Ferguson, 622 S.W.2d at 849-50.
FN21. TEX.CODE CRIM. PROC. ANN. art. 21.21(7).
FN22. TEX.CODE CRIM. PROC. ANN. art. 21.03; TEX.CODE CRIM. PROC. ANN. art. 21.23.
charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.] FN23
FN23. TEX.CODE CRIM. PROC. ANN. art. 21.11; TEX.CODE CRIM. PROC. ANN. art. 21.23.
We have recognized that in most cases a charging instrument that tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice.FN24 When a statutory term or element is defined by statute, the charging instrument does not need to allege the definition of the term or element.FN25 Typically the definitions of terms and elements are regarded as evidentiary matters.FN26 But in some cases, a charging instrument that tracks the statutory language may be insufficient to provide a defendant with adequate notice.FN27 This is so when the statutory language fails to be completely descriptive.FN28 The statutory language is not completely descriptive “when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant.” FN29 In such cases, “more particularity is required to provide notice.” FN30 Thus, “if the prohibited conduct is statutorily defined to include more than one manner or means of commission, the State must, upon timely request, allege the particular manner or means it seeks to establish.” FN31
FN24. Lawrence, 240 S.W.3d at 916 (citing State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998)); Curry, 30 S.W.3d at 398 (citingOlurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App.1994)); Phillips v. State, 597 S.W.2d 929, 934 (Tex.Crim.App.1980) (citing Parr v. State, 575 S.W.2d 522, 526 (Tex.Crim.App.1978); Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978)).
FN25. Geter v. State, 779 S.W.2d 403, 405 (Tex.Crim.App.1989) (citing Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981);May v. State, 618 S.W.2d 333, 341 (Tex.Crim . App.1981)).
FN26. Marrs v. State, 647 S.W.2d 286, 289 (Tex.Crim.App.1983) (citing Thomas, 621 S.W.2d at 162); see also Curry, 30 S.W.3d at 398.
FN27. Curry, 30 S.W.3d at 398.
FN29. Solis v. State, 787 S.W.2d 388, 390 (Tex.Crim.App.1990); Geter, 779 S.W.2d at 405 (citing Ferguson, 622 S.W.2d at 851).
FN31. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Crim.App.1994) (citing Ferguson, 622 S.W.2d at 851).
*3 On appeal, because the sufficiency of a charging instrument presents a question of law, an appellate court reviews a trial judge’s decision to quash a charging instrument for failure to provide adequate notice de novo.FN32
FN32. Moff, 154 S.W.3d at 601.
B. Notice and DWI
Garcia and Carter are our two most recent cases addressing the issue of adequate notice under the DWI statute. In our 1988 decision in Garcia,we held that when a defendant is charged with DWI, in order to provide adequate notice, the State must allege the specific type of intoxicant(s) that the defendant allegedly used to become intoxicated.FN33 In charging Garcia with DWI, the State alleged that Garcia “ ‘did then and there drive and operate a motor vehicle in a public place … while intoxicated, when [he] did not have the normal use of his mental and physical faculties.’ “ FN34
FN33. 747 S.W.2d at 381.
FN34. Id. at 380.
In deciding that the specific type of intoxicant must be included in the charging instrument, we reasoned that the prohibited conduct of becoming intoxicated depends on an act or omission of the defendant and that such conduct, under the first definition for “intoxication,” “can be accomplished in several different ways.” FN35 Continuing, we said that the type of intoxicant “becomes an element of the offense and critically necessary to the State’s proof .” FN36 Concluding, we held that, because the State failed to allege the type of intoxicant, the charging instrument did not provide Garcia with adequate notice.FN37
FN35. Id. at 381.
Approximately three years later, examining the same statute in Carter, we built on Garcia’s holding and stated that, in addition to alleging the specific type of intoxicant, the State must also allege the definition of “intoxicated” that it intends to prove at trial to provide adequate notice. FN38 In making this determination, we concluded that the definitions of “intoxicated” describe two types of DWI offenses, a “loss of faculties” offense and a “per se offense.” FN39 The “loss of faculties” offense, we said,
FN38. 810 S.W.2d at 200.
may be established by proving the defendant drove or operated a motor vehicle in a public place while not having the normal use of his mental faculties, or while not having the normal use of his physical faculties, because of the introduction into his body of (1) alcohol; (2) a controlled substance; (3) a drug; or (4) a combination of two or more of those substances.FN40
In contrast, we said that the “per se” offense “may be established by proving the defendant drove or operated a motor vehicle in a public place while having an alcohol concentration of 0 .10 or more in his blood, breath, or urine.” FN41
Finally, recognizing Garcia and another case discussing notice, we then said that “given the fundamentally different natures” of the two offenses “and the different behaviors necessary to commit the two offenses,” the State must allege the definition(s) of “intoxicated” that it intends to prove at trial. FN42 We then held that the information, which did not specify the type of intoxicant Carter allegedly used or the definition of “intoxicated” that the State would rely on at trial, did not provide Carter with adequate notice so he could prepare his defense.FN43
FN42. Id. (citing Garcia, 747 S.W.2d at 381; Solis, 787 S.W.2d at 391).
C. Gray v. State
*4 In Gray, in 2004, we repudiated our statement in Garcia that the specific type of intoxicant is an element of DWI. In that case, the State charged Gray with DWI, and the information alleged, in part, that Gray did not have the normal use of his mental and physical faculties due to the introduction of alcohol.FN44 At trial, evidence was admitted establishing that Gray was taking several anti-depressant medications at the time of the offense.FN45 A chemist testifying on behalf of the State stated that alcohol and anti-depressant drugs have the same depressant effect on the central nervous system and that when the two are used in combination with one another, it can result in what has been described as a “synergistic effect.”FN46 According to the chemist, the two medications can interact inappropriately: when used together either one may “accelerate the ac
tion of one medication.” FN47
FN44. 152 S.W.3d at 126.
FN47. Id. at 127.
The trial judge’s proposed charge instructed the jury that if the defendant indulges in the use of the anti-depressant medications and “thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the alcohol alone.” FN48 The judge’s proposed application paragraph also instructed the jury to convict if it found that Gray was driving while intoxicated by reason of the introduction of alcohol into his body, either alone or in combination with anti-depressant medications.FN49 Gray objected to the charge, arguing that it improperly expanded the scope of the of the State’s allegation in the information because, under our decision in Garcia, the specific type of intoxicant alleged to have been used by the defendant is an element of the offense of DWI.FN50 The trial judge overruled the objection, and Gray was subsequently found guilty and sentenced. FN51
FN50. Gray, 152 S.W.3d at 131.
FN51. Id. at 127.
Gray appealed, arguing that the jury charge, which instructed the jury on the “synergistic effect,” was not part of the law applicable to the case.FN52 The First Court of Appeals in Houston disagreed and affirmed the judgment of the trial court.FN53 We granted review to decide whether the court of appeals “erred in holding that the instruction constituted the law applicable to the case when Gray was not charged with intoxication by a combination of drugs and alcohol.” FN54
We began by examining the DWI statute and, in particular, Garcia’s statement that the type of intoxicant is an element of DWI.FN55 We observed that this statement was dicta because the issue in Garcia involved pleading notice requirements and was therefore unnecessary to the resolution of the case.FN56 We then noted three “problems with the statement.” FN57
FN55. Id. at 131.
FN56. Id. at 132.
“First, it contradicts the statutory definitions of what constitutes an element of the offense.” FN58 Section 1.07 defines the elements of the offense as “the forbidden conduct, the required culpability, the required result, and the negation of any exception to the offense.” FN59 The type of intoxicant does not constitute any of these, and “[t]he mere fact that the DWI statute separately defines intoxication does not automatically elevate the intoxicant to the status of an element of the offense.” FN60 Second, the statement conflicts with our caselaw; specifically, Ex parte Luna,FN61 which addressed the essential elements of the theft statute.FN62 There, we held that the definitions of “unlawfully” are not elements of the offense of theft but are evidentiary matters that do not need to be alleged in the charging instrument.FN63 Comparing Ex parte Luna, we said that even though the DWI statute defines “intoxicated,” this fact does not mean that the types of intoxicants are elements of DWI.FN64 Third, it would be bad public policy to hold that the specific type of intoxicant is an element of DWI because a defendant could obtain an acquittal if the State, at trial, ultimately proves that the defendant used another type of intoxicant than the one alleged in the charging instrument.FN65 The DWI statute, we observed, does not focus on the act of becoming intoxicated; it focuses on the act of the defendant while intoxicated.FN66 Based on these considerations, we held that the type of intoxicant used by the defendant is not an element of DWI and “disavow[ed] the dicta in Garcia to the contrary.” FN67
FN59. Id. (citing TEX. PENAL CODE ANN. § 1.07(a)(22)).
FN61. 784 S.W.2d 369 (Tex.Crim.App.1990).
FN62. Gray, 152 S.W.3d at 132.
FN63. Ex parte Luna, 784 S.W.2d at 371.
FN64. Gray, 152 S.W.3d at 132.
*5 Examining the jury charge in Gray’s case, we held that the “synergistic effect” instructions in the charge did not expand on the allegation in the information and therefore properly applied the law to the facts of the case. FN68 We reasoned that the instructions “permitted the jury to convict if Gray’s drug made him more susceptible to alcohol, but it still required intoxication due to alcohol.” FN69
FN68. Id. at 133.
Reiterating the arguments it made before the trial judge and the court of appeals, the State contends that by explicitly disavowing Garcia’sreasoning in Gray, we necessarily undermined Carter’s holding that the State is required to allege the definition of “intoxicated” that it intends to rely on at trial. The State asserts that a person’s state of intoxication is not an act or omission; instead, it is the defendant’s condition and a circumstance that accompanies the defendant’s act of operating a motor vehicle. In response, Barbernell argues that our decision in Carter is sound and has not been undermined by Gray. Citing Carter as controlling precedent, Barbernell asserts that the court of appeals was correct in affirming the trial judge’s ruling.
At the outset, we must make clear that our discussion about the elements of DWI in Gray had no impact on Garcia’s holding concerning the adequacy of notice. We expressly made this point at the end of our opinion in Gray when responding to the State’s request that we overrule Garcia’snotice holding: “Reaching out to address the validity of Garcia’s notice holding would be dicta. And we have rejected this argument before. We decline to consider it today.” FN70 Consequently, contrary to the State’s argument, Gray’s discussion of the elements of DWI and renunciation ofGarcia’s statement that the type of intoxicant is an additional element of the offense, while authoritative with respect to the elements of DWI, does not directly control the pleading notice issue before us.
FN70. 152 S.W.3d at 134 (majority opinion), 136 (Cochran, J., dissenting).
In analyzing whether a charging instrument provides adequate notice, our notice jurisprudence makes clear that courts must engage in a two-step analysis. First, a court must identify the elements of an offense. As recognized in Gray, the elements, defined by the Legislature, include: the forbidden conduct, the required culpability, if any, any required result, and the negation of any exception to the offense.FN71 Next, as to the second inquiry, when the Legislature has defined an element of the offense that describes an act or omission, a court must ask whether the definitions provide alternative manners or means in which the act or omission can be committed. If this second inquiry is answered in the affirmative, a charging instrument will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely
on at trial. With these principles in mind, we find that it is necessary to revisit our analysis inCarter.
FN71. TEX. PENAL CODE ANN. § 1.07(22).
*6 A careful review of our decision in Carter reveals that the Court’s analysis was incorrect. First, although the Court, consistent with Gray, began by citing the elements of DWI as those set out in Article 6701 l-1(b) of the Texas Revised Civil Statutes, now codified in Section 49.04(a), Texas Penal Code, the Court ultimately held that by virtue of the definitions of the element “intoxicated,” that there two separate DWI offenses-“loss of faculties” and “per se.” The Court reached this conclusion based on its determination that the definitions of “intoxicated” permit the offense of DWI to be proven in two ways. Our reevaluation of this analysis exposes a serious defect in the Court’s reasoning: After identifying the elements of DWI, the Court neglected to ask whether the definitions of “intoxicated” concern an act or omission so as to create more than one manner and means of committing an offense. Instead, without explanation, the Court decided that the two definitions of “intoxicated” each constitute separate acts or forbidden conduct. In doing so, the Court failed to reconcile this conclusion with its previous statement that the definitions of “intoxicated” involve only matters of proof. Then, expanding on its faulty determination, the Carter Court held that, because the two types of forbidden conduct involve “fundamentally different natures” and “different behaviors,” a charging instrument must allege the definition of “intoxicated” that the State will seek to prove at trial.
The shortcomings of Carter’s constitutional analysis have not gone unnoticed by legal scholars. Criminal law experts Professors Dix and Dawson have criticized this opinion, stating that the Court “took considerable liberties with the concept of ‘behavior’ or conduct constituting an offense.” FN72In their view,
FN72. DIX & DAWSON, 41 TEXAS PRACTICE AND PROCEDURE § 20.314 (2nd ed.2001).
[t]he State’s choice between the methods of proving intoxication does not in any sense determine what acts, conduct or ‘behavior’ of the accused that the State will rely on. Rather, the choice concerns the type of evidence the State will rely upon to show particular conduct by the accused-‘driving’ or ‘operating’ a vehicle-performed while a particular circumstance-intoxication-existed.FN73
Having determined that Carter’s holding evolved from a flawed analysis, we now reevaluate the notice issue according to the dictates of our precedent. With the understanding that “intoxicated” is an element of DWI FN74 and that Section 49.01(2) sets out two definitions for “intoxicated,” we ask whether the definitions of “intoxicated” concern an act or omission and create two different manners and means of committing DWI. Our recent examination of the definitions of “intoxicated” in Bagheri v. StateFN75 leads us to conclude that the answer to this question is “no.” Echoing the sentiments of Professors Dix and Dawson, in Bagheri, we held that the definitions “set forth alternative means by which the State may proveintoxication, rather than alternate means of committing the offense.” FN76 We then explained, “The conduct proscribed by the Penal Code is the act of driving while in a state of intoxication. That does not change whether the State uses the per se definition or the impairment definition to prove the offense.” FN77 These statements make clear that the definitions of “intoxicated” are purely evidentiary matters; therefore, they do not need to be alleged in a charging instrument to provide a defendant with sufficient notice. As a result, we overrule Carter’s holding that the State must allege the definition of “intoxicated” that it intends to rely on at trial in the charging instrument to provide adequate notice. A charging instrument that pleads the offense of DWI provides adequate notice when it sets out the elements of the offense as provided in Section 49.04.
FN74. Gray, 152 S.W.3d at 131.
FN75. 119 S.W.3d 755 (Tex.Crim.App.2003)
FN76. Id. at 762 (emphasis in original).
*7 Thus, in this case, the information, though it did not allege either definition of “intoxicated,” provided Barbernell with adequate notice, and the court of appeals erred to conclude otherwise.
After reevaluating our analysis in Carter, we hold that the definitions of “intoxicated” in Section 49.01(2) are evidentiary and therefore do not need to be alleged in a charging instrument. Therefore, a trial court should not quash a DWI information charging a defendant with DWI due to the State’s failure to allege the definition of “intoxicated” that it intends to prove at trial. The judgment of the court of appeals is reversed and vacated, and the cause is remanded to the trial court.
State v. Barbernell
— S.W.3d —-, 2008 WL 2596934 (Tex.Crim.App.)