I. Information/Charging Instrument

A. MENTAL OR PHYSICAL FACULTIES

Herrera v. State, 11 S.W.3d 412 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

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).

Use of language “loss of normal use of mental and physical faculties” in charging instrument is proper and the State need not elect because the “and” becomes “or” in the jury instructions.

B. “PUBLIC PLACE” IS SPECIFIC ENOUGH

Ray v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref’d).

King v. State, 732 S.W.2d 796 (Tex.App.-Fort Worth 1987, pet. ref’d).

Allegation of “public place” is a sufficiently specific description.

C. STATE DOES NOT HAVE TO SPECIFY WHICH DEFINITION OF INTOXICATION IT IS RELYING ON IN THE INFORMATION

State v. Barbernell, 257 S.W.3d 248 (Tex.Crim.App.2008).

The State does not have to allege in the charging instrument which definition of “intoxicated” the defendant is going to be prosecuted under. The definitions of “intoxicated” do not create two manners and means of committing DWI. The conduct proscribed is the act of driving while intoxicated. The two definitions only provide alternative means by which the State can prove intoxication and therefore are not required to be alleged in the charging instrument. The Court found that it’s holding in State v. Carter, 810 S. W. 2d 197 (Tex.Crim.App. 1991) was flawed, and it was explicitly overruled by this opinion. This will greatly simplify charging language and may do away with the need for synergistic charges. Bottom line, when you say “intoxicated,” you’ve said it all.

D. NO MENTAL STATE NECESSARY IN DWI CHARGE

  1. PRE §49.04
    • Hardie v. State, 588 S.W.2d 936 (Tex.Crim.App. 1979).
  2. POST §49.04
    • Lewis v. State, 951 S.W.2d 235 (Tex.App.-Beaumont 1997, no pet.).
    • Reed v. State, 916 S.W.2d 591 (Tex.App.-Amarillo, 1996, pet. ref’d).
    • Chunn v. State, 923 S.W.2d 728 (Tex.App.-Houston [1st Dist.] 1996, pet. ref’d).
    • Sanders v. State, 936 S.W.2d 436 (Tex.App.-Austin 1996, pet. ref’d).
    • State v. Sanchez, 925 S.W.2d 371 (Tex.App.-Houston [1st Dist.] 1996, pet. ref’d).
    • Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.] 1996, pet. ref’d).
    • Aguirre v. State, 928 S.W.2d 759 (Tex.App.-Houston [14th Dist.] 1996, no pet.).

E. UNOBJECTED TO ERROR IN CHARGING INSTRUMENT

McCoy v. State, 877 S.W.2d 844 (Tex.App.-Eastland 1994, no pet.).

Where charging instrument mistakenly alleged loss of “facilities” and no objection was made prior to trial, the judge could properly replace the term with “faculties” in the jury instruction.

F. READING DWI ENHANCEMENT AT WRONG TIME

Pratte v. State, No. 03-08-00258-CR, 2008 WL 5423193 (Tex.App.-Austin 2008, no pet.).

The court allowed the State to read the enhancement paragraph in front of the jury that alleged a prior DWI conviction over the defendant’s objection. Article 36.01 of the Code of Criminal Procedure says that when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment. In this particular case, the defendant stipulated to the prior listed in the enhancement after the information was read and before the State called its first witness so the Court holds that the asserted error did not contribute to the defendant’s conviction.

G. DWI W/CHILD – ONE CASE PER DRIVING INCIDENT

Gonzalez v. State, 516 S.W.3d 18 (Tex.App.-Corpus Christi-Edinburg 2016)

The “allowable unit of prosecution” under Penal Code 49.045 (DWI with Child) is “one offense for each incident of driving or operating a motor vehicle” not for each child in the vehicle.

State v. Bara, No. 11-15-00158-CR, 2016 WL 4118659 (Tex. App. 2016)

This case addressed the question of a situation where a Defendant committed the offense of DWI with Child with more than one child in the vehicle. The question is whether a separate charge can be filed for each child in the car? The Court finds that for the offense of DWI with child has one allowed unit of prosecution for each incident of driving a vehicle rather than for each child present in the car.

H. STATUTE OF LIMITATION FOR DWI 3RD OR MORE

Ex Parte Smith, NO. 12-16-00260-CR, 2-17 Tex.App. LEXIS 4958, 2017 WL 2351114 (Tex. App. – Tyler 2017)

The charged offense of DWI third or more is governed by Tex.Code.Crim.Proc.Ann.Art. 12.01(7), which sets the limitation period of three years for felonies not specifically listed in subsections one through six of Article 12.01. Article 12.03(d) does not apply.