I respectfully dissent. The majority correctly concludes that the state need not allege which of the two avenues ofproof on which it will rely, 0.10 alcohol concentration or loss of faculties. However, the majority errs when they conclude that the state need not allege the intoxicant relied upon to prove intoxication and finds that "intoxication is a condition and not an act." This conclusion is in direct conflict with the holdings of the court of criminal appeals inGarcia v. State, 747 S.W.2d 379 (Tex.Crim.App. 1988),Solis v. State, 787 S.W.2d 388 (Tex.Crim.App. 1990) and State v. Winskey, 790 S.W.2d 641 (Tex.Crim.App. 1990) and in direct conflict with the holding of this court inState v. Carter, 780 S.W.2d 811 (Tex.App. — Houston [14th Dist.] 1989, pet. granted).
In Solis, the court cited Garcia to reiterate that it had rejected the state's position that it need not plead which intoxicant the defendant had consumed.Solis, 787 S.W.2d at 389 n. 5. The court, examining the general rule concerning when a timely motion to quash will succeed, stated that when the legislature has defined the terms and elements of an offense in the Penal Code, "the definitions and terms are essentially evidentiary and need not be alleged in the indictment. This is, in effect, the general rule that, subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient." Id. (quoting Thomas v. State,621 S.W.2d 158, 161 (Tex.Crim.App. 1980)). The court then noted that
Solis, 787 S.W.2d at 390. Thus, the court recognized that the DWI statute was a rare exception to the general rule regarding motions to quash. Further, the court recognized that (2)(A) of the statute defined "intoxicated" in such a way as to create several means or manners of being intoxicated. The court by implication held that the definition specifically concerned an act of the defendant.an exception to the general rule occurs when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant. For example, in Garcia, this court held that when a defendant is charged with driving while intoxicated, he is entitled, upon timely request, to have the state specify upon which means of intoxication, under V.A.T.S. Art. 6701l -1(a)(2)(A), it will rely.
The court then set forth the elements of the offense of driving while intoxicated: (1) a person (2) drives or operates (3) a motor vehicle (4) in a public place (5) while intoxicated. Id. Further, the court stated that there are four manners in which a defendant's conduct or acts may lead to intoxication: (1) ingestion of alcohol, (2) ingestion of a controlled substance, (3) ingestion of a drug, (4) ingestion of some combination of alcohol, controlled substances, and/or drugs. The court concluded that "a charging instrument must allege which statutory definition upon which it will rely, only when the alternative definitions create different ways in which a defendant's conduct could constitute an element of the offense." Id. at 391. Since the alternative definitions of "intoxicated" create different ways in which a defendant's conduct or acts could lead to intoxication (by ingestion of alcohol, or a controlled substance, or drugs, or a combination thereof), the charging instrument must allege the specific intoxicant(s) on which the state will rely. The court recognized that a specific allegation is required when the accused files a timely motion to quash. Id. (citing Garcia).
In Solis, the charging instrument did allege the means or conduct by which the accused had become intoxicated, i.e., the ingestion of alcohol into the body. The court held that the state need not go forward and allege which method of proving intoxication on which it would rely, i.e., (1) 0.10 alcohol concentration or (2) loss of faculties. Id. The court held that the charging instrument gave Solis full notice of the charges against him only because the charging instrument had alleged the means or conduct by which the accused had become intoxicated.
*Page 349 In State v. Winskey, the charging instrument tracked the DWI statute and contained both definitions of intoxicated, i.e., not having normal use of mental or physical faculties, by reason of the introduction of alcohol, a controlled substance, a drug, or a combination or two or more of those substances into the body, or having an alcohol concentration of .10 or more. The trial court quashed the information and the court of appeals affirmed, holding that the state could not charge the offense in the disjunctive if the state sought to charge more than one method of commission. Winskey, 790 S.W.2d at 642. The state appealed and the court of criminal appeals reversed. The court held that the disjunctive allegations did not invalidate the information. However, theWinskey court was not faced with the problem brought to us by this appellant because Winskey only requested the trial court to "require the State to designate which definition of intoxicated it would prove." There was no motion to compel the State to elect which "means of intoxication" under (2)(A) on which it would rely.
In Garcia, the Texas Court of Criminal Appeals very clearly stated:
Garcia, 747 S.W.2d at 381. The court held that when an act or omission by defendant is statutorily defined, and that definition provides more than one way to commit the act or omission, then upon a timely request by the defendant the State must allege the exact manner of intoxication that it seeks to establish. Id. at 380.In a prosecution under art. 6701l -1(b) . . . with the addition of art. 6701l -1(a)(2)(A) to the definition of intoxication, the type of intoxicant used i.e., alcohol, a controlled substance, a drug, or a combination of two or more of those substances, becomes an element of the offense and critically necessary to the State's proof.
We therefore hold that a charging instrument which alleges an offense under art. 6701l -1(b) with intoxication defined under art. 6701l -1(a)(2)(A) must allege the intoxicant singularly, or in a disjunctive combination. (emphasis added)
The Garcia court further distinguished cases involving involuntary manslaughter1 where the focus of the statute involved driving a motor vehicle while intoxicatedand on a death accidentally caused by such driving while intoxicated, and not on the substance which caused the intoxication. The court held that in those cases the substance used to produce the intoxication was evidentiary and was not a necessary part of the notice required to the accused.Id. at 381. Nonetheless, the court was clear in holding that under art. 6701l-1(a)(2)(A) if the charging instrument does not contain the intoxicant to be relied upon by the State to prove the DWI it cannot survive a motion to quash because the accused has not been given sufficient notice. Solis at 391; Garcia at 381.
Although the majority opinion contends that this court has previously held intoxication to be a condition, and not an act or omission, the majority misinterprets the previous ruling of this court. In State v. Carter, this court held:
Carter, 780 S.W.2d at 813.We view Garcia as holding that if the State intends to proceed against the defendant under § 1(a)(2)(A) of the DWI statute on the basis that the defendant was intoxicated because he had lost the use of his mental and physical faculties due to the ingestion of alcohol, a controlled substance, a drug, or a combination thereof, it must name the intoxicant or combination thereof in the charging instrument. Otherwise, the defendant does not have proper notice of the charge against him. (emphasis added)
This court went on to discuss the Garcia case and stated that when the State charges the defendant under art. 6701l -1(a)(2)(B) of the DWI statute that the defendant was intoxicated because he had an alcohol concentration of 0.10 or more, then that definition is simply a definition *Page 350 of a condition, and leaves no doubt as to the intoxicant involved. This court reached that determination because "only alcohol is implicated in this definition."Carter, 780 S.W.2d at 813. We very clearly understood and followed Garcia in holding that where the definition involves an act or omission, such as "ingestion of alcohol, a controlled substance, a drug, or a combination thereof, it must name the intoxicant orcombination thereof in the charging instrument. Otherwise, the defendant does not have proper notice of the charge against him." Id. However, when the only intoxicant involved is alcohol, and the State charges that the defendant has violated the DWI statute because thealcohol concentration is 0.10 or more, then, and only then, the State is dealing with a condition rather than an act or omission.
Clearly, the Texas Court of Criminal Appeals and this court have held that where a DWI defendant is accused of intoxication because of loss of his normal mental and physical faculties due to the introduction into his body of one or more intoxicants, the State, on proper notice and motion, must allege, either singularly or in a disjunctive combination, thespecific means of intoxication by which they plan to prosecute the accused. Garcia, 747 S.W.2d at 381.
The trial court also compounded the error by charging the jury that they could find the defendant guilty if they found that he was intoxicated by reason of "the introduction of alcohol, a drug, or a combination of those substances into the body." Where the offense is capable of performance in more than one way, on timely motion by the accused, the Statemust give notice to the accused of which intoxicant they plan to rely to prove the allegations in the information. It is impossible to determine whether this jury found the defendant guilty by reason of ingestion of alcohol, or drugs, or both. The jury may well have found that appellant did not consume enough alcohol to be intoxicated, but was intoxicated because of taking Dristan. Appellant did not have sufficient notice of the charge against him and was denied the opportunity to prepare a proper defense.
There is no question that the trial court was timely put on notice of the defect in the information and in the charge. I would sustain appellant's points of error three, four, five, eight and nine, reverse the judgment of the trial court, and remand this case for a new trial.