# Harkins v. State

> Court of Appeals of Texas · August 29, 2008 · 268 S.W.3d 740

URL: https://www.frixlaw.com/law-library/cases/9639158

## Case

- **Full name:** Patricia Louise HARKINS, Appellant v. the STATE of Texas, State
- **Court:** Court of Appeals of Texas
- **Decided:** August 29, 2008
- **Citations:** 268 S.W.3d 740; 2008 Tex. App. LEXIS 6637; 2008 WL 4053029
- **Precedential status:** Published
- **Opinion:** Concurrence by Cayce
- **Judges:** Cayce, Dauphinot, McCOY
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639158

## How later opinions describe it (automated extraction)

- 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 dr…
- 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
- holding sufficient evidence of intoxication where officer testified appellant had heavy eyes, constricted pupils, disorientation, and slurred speech

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639158. Public record. Not legal advice.