# State v. Carter

> Court of Criminal Appeals of Texas · June 12, 1991 · 810 S.W.2d 197

URL: https://www.frixlaw.com/law-library/cases/9774526

## Case

- **Full name:** The STATE of Texas, Appellant, v. Homer CARTER, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 12, 1991
- **Citations:** 810 S.W.2d 197; 1991 WL 50614
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Campbell, McCormick, White
- **Cited by:** 86 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by State v. Barbernell, 2008 Tex. Crim. App. LEXIS 825 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774526

## How later opinions describe it (automated extraction)

- holding that State must include in its charging instrument an allegation of the specific intoxicant which caused intoxication
- holding that “in the face of a motion to quash” the state must allege which definition of intoxication it intends to prove

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
As a general rule, a charging instrument that tracks the language of a penal statute is legally sufficient to inform the accused of the nature of the charges against him. Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983). When the Legislature establishes offenses and further defines the terms and elements of these offenses, “the definitions of the terms and elements are essentially evidentiary and need not be alleged in the indictment.” Thomas v. *201 State, 621 S.W.2d 158, 161 (Tex.Cr.App.1981) (Opinion on Rehearing). An exception to this rule occurs when an element of the offense proscribes conduct, that is, an act or omission of the accused, that can be committed in multiple ways; this then requires the element or definition to be specifically charged. Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1981). But cf. Swope v. State, 805 S.W.2d 442 (Tex.Cr.App.1991) (accused indicted as party not entitled to further allegation of manner and means by which he allegedly “solicited, encouraged, directed, aided or attempted to aid primary actor”). I do not believe the definition of “intoxicated” comes within this exception to the rule, and therefore, I dissent.
Before the present DWI statute was created, there were two separate and distinct offenses for driving under the influence: (1) driving under the influence of an intoxicating liquor (Article 6701/-1, Vernon's Ann.Civ.St.) and (2) driving under the influence of drugs (Article 6701d, § 50(a), Vernon’s Ann.Civ.St.). In 1983 the Legislature repealed these two statutes and created the current DWI statute (Article 6701/-1), which simply proscribes the act of “driving while intoxicated.” Article 6701/ -1 does not prohibit the mere act of ingesting alcohol, drugs, controlled substances, or any combination of the three; rather, it outlaws the act of driving while being in an intoxicated condition. Thus, the statutory definition 1 of intoxicated provides nothing more than the evidentiary means by which the State can prove that an accused is in an intoxicated condition. See Collins v. State, 762 S.W.2d 670 (Tex.App.—Tyler 1988, no pet.); Gowin v. State, 760 S.W.2d 672 (Tex.App.—Tyler 1988, no pet.); McGinty v. State, 740 S.W.2d 475 (Tex.App.—Houston [1st Dist.] 1987, pet. ref’d); Sims v. State, 735 S.W.2d 913 (Tex.App.—Dallas 1987, pet. ref’d); Barraza v. State, 733 S.W.2d 379 (Tex.App.—Corpus Christi 1987, pet. granted); Brown v. State, 717 S.W.2d 763 (Tex.App.—San Antonio 1986, no pet.); Gaudin v. State, 703 S.W.2d 789 (Tex.App. —Waco 1985, pet. ref’d); Perryman v. State, 687 S.W.2d 371 (Tex.App.—Houston [14th Dist.] 1984, no pet.) (courts of appeals concluding that “intoxicated” is conduct that need not be defined in charging instruments).
Furthermore, I fail to see the distinction the majority attempts to make between charging in the conjunctive or disjunctive and merely charging “driving while intoxicated.” After today’s majority opinion, the State can (and most likely will) charge an offense under Article 6701/-1 as follows:
“Defendant ... did ... unlawfully ... while not having the normal use of mental or physical faculties by reason of the introduction of alcohol and/or a controlled substance and/or drugs and/or a combination of two or more of those substances into the body and/or having an alcohol concentration of .10 or more, as measured by the number of grams of alcohol per 100 milliliters of blood and/or the number of grams of alcohol per 210 liters of breath and/or the number of grams of alcohol per 67 milliliters of urine, drive and operate a motor vehicle in a public place....” See Article 6701/-1.
The resulting pleading will give an accused no more notice than a charging instrument alleging “driving while intoxicated.” See Thomas v. State, 621 S.W.2d at 164 (conjunctive pleading will give no more notice than alleging terms generally). Although the majority opines that such an instrument “puts a defendant on clear notice of what the State will attempt to prove at trial,” it does not explain how a defendant charged with the above will not be “left to guess or assume that the State [is] going to prove one or all the types of [statutorily-defined] conduct.” The majority creates its own conundrum and further confuses an already confused area of the law. See Dix, Texas Charging Instrument Law: Recent Developments and the Continuing Need for Reform, 35 Baylor L.Rev. 689 (1983) (uncertainty in Texas charging law because *202 no clear rules have evolved to enable the State to determine when the statutory language will be insufficient and require additional definitions to be pled).
Because I do not believe the Texas Constitution requires a charging instrument to specifically allege the type of intoxicant ingested for a DWI offense, and moreover, because I believe that today’s majority opinion will unnecessarily frustrate the endeavor to keep dangerous drunk drivers off the public thoroughfares of our State, I respectfully dissent.
. "Intoxicated” was not defined in the statutes prior to the amendment in 1983 and it was not required to be defined in charging instruments. See Davis v. State, 142 Tex.Crim. 602 , 155 S.W.2d 801 (1941) and Sorg v. State, 688 S.W.2d 133 (Tex.App.—Beaumont 1985, no pet.).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774526. Public record. Not legal advice.