Sullivan v. State

I concur in all of the majority opinion except its conclusion that the State need not allege the intoxicant in the charging instrument for a D.W.I. case. Since our opinion in Statev. Carter, 780 S.W.2d 811 (Tex.App. — Houston [14th Dist.] 1989, pet. granted), the court of criminal appeals has made its position clear that D.W.I. charging instruments which omit the requisite intoxicant are vulnerable to a timely motion to quash because they do not provide sufficient notice to the defendant. Solis v. State, 787 S.W.2d 388 (Tex.Crim.App. 1990). In Solis, the court referred to its earlier decision in Garcia v. State, 747 S.W.2d 379 (Tex.Crim.App. 1988).

I view the Solis opinion as a clear mandate by the court of criminal appeals that the charging instruments in D.W.I. cases are a rare exception to the general rule that such instruments which track the words of the applicable penal statute are legally sufficient. Solis, 787 S.W.2d at 390. The court of criminal appeals has determined that thedefinition of "intoxicated" in the D.W.I. statute constitutes conduct and is to be considered an element of the offense insofar as the following is concerned: "introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body. . . ." TEX.REV.CIV.STAT.ANN. art. 6701l -1(a)(2)(A) (Vernon Supp. 1991). As such, the court of criminal appeals has now decided that when a defendant is charged with the offense of driving while intoxicated he is entitled, upon timely request, to have the State specify which means of intoxicant, or combination thereof, it will rely upon in the charging instrument. I, of course, defer to the court of criminal appeals notwithstanding my firm belief that intoxication is a condition and not an act.

However, in the context of this case, I agree with the majority opinion that the judgment should be affirmed. After subjecting the case to the so-called Adams analysis, I agree that the denial of the motion to quash, while in error, did not substantially impact on appellant's ability to prepare a defense.

I concur in affirming the judgment of the trial court.

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