holding that penal code section 49.10 referring to “the dangerous drug” must be read with intoxication definition in section 49.01 referring to “a dangerous drug,” and that instruction specifying that “the fact that the defendant is or has been entitled to use the dangerous drug is not a defense [to DWI],” when one of the fact issues for the jury was whether Harkins had taken a dangerous drug at all, constituted an improper comment on the weight of the evidence
How later courts described this case
- holding that penal code section 49.10 referring to “the dangerous drug” must be read with intoxication definition in section 49.01 referring to “a dangerous drug,” and that instruction specifying that “the fact that the defendant is or has been entitled to use the dangerous drug is not a defense [to DWI],” when one of the fact issues for the jury was whether Harkins had taken a dangerous drug at all, constituted an improper comment on the weight of the evidence
- holding jury was entitled to disbelieve evidence that appellant’s impairment was caused by preexisting physical impairment or sleep apnea and instead find that a drug, Soma, caused the impairment
- holding evidence of intoxication sufficient based on officer testimony that appellant’s eyes were heavy, her pupils constricted, and she was disoriented and slurred her speech
- holding evidence sufficient to convict defendant of DWI when State presented evidence defendant had taken the drug Soma and two witnesses who testified Soma can cause impairment
Written by the judges who cited it.
The opinion
CAYCE, C. J.
filed a concurring opinion.
I concur in the majority opinion and write only to note my disagreement with the majority’s holding that the trial court committed error by instructing the jury with language that tracks section 49.10 of the Texas Penal Code. The Texas Court of Criminal Appeals has held that language in a jury charge that follows the law as it is set out by the Texas Legislature shall not be deemed error on the part of the trial court. 1 Because we are bound by the deci *752 sions of the court of criminal appeals, 2 I would hold that the trial court did not err by submitting an instruction on section 49.10 that tracks the language of the statute. I agree with the majority in all other respects.
. E.g., Martinez v. State, 924 S.W.2d 693, 699 (Tex.Crim.App.1996) (holding that ”[f]ollow-ing the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge”); Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994) (holding that "[a] jury charge which tracks the language of a particular statute is a proper charge on the statutory issue”), cert. denied, 514 U.S. 1068 , 115 S.Ct. 1701 , 131 L.Ed.2d 563 (1995); Duffy v. State, 567 S.W.2d 197, 204 (Tex.Crim.App.) (finding no error where charge tracked the language of the statute, despite appellant’s argument that the word “whether” made the charge ambiguous and *752 the word “that” should have been substituted), ce rt. denied, 439 U.S. 991 , 99 S.Ct. 593 , 58 L.Ed.2d 666 (1978).
. Wiley v. State, 112 S.W.3d 173, 175 (Tex.App.-Fort Worth 2003, pet. ref'd).