Russell v. State

• Decision Date: 16 April 1986
• Docket Number: No. 3-86-021-CR,3-86-021-CR
• Citation: 710 S.W.2d 662
• Parties: Leon RUSSELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 662

710 S.W.2d 662

Leon RUSSELL, Appellant, v. The STATE of Texas, Appellee.

No. 3-86-021-CR.

Court of Appeals of Texas,

Austin.

April 16, 1986.

Keith Woodley, Comanche, for appellant.

Patrick Ridley, Co. Atty., Henry L. Garza, Asst. Co. Atty., Belton, for appellee.

Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.

PER CURIAM.

Following his plea of guilty, the trial court found appellant guilty of driving while intoxicated, second offense. Tex.Rev.Civ.Stat.Ann. art. 6701l -1(b) and (d) (Supp.1986). In accordance with a plea-bargain agreement, the court assessed punishment at incarceration for sixty days and a $750 fine.

In his only ground of error, appellant contends the trial court erred by overruling his motion to quash the information because it does not allege the manner of his intoxication. The information alleges that on or about April 14, 1985, appellant did "unlawfully while intoxicated, drive and operate a motor vehicle in a public place...."

Art. 6701l -1(b), supra, provides that:

A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.

Subsection (a)(2) of art. 6701l -1 defines "intoxicated" as:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or

(B) having an alcohol concentration of 0.10 or more.

Appellant urges that, in response to his motion to quash, the State should have been required to allege the definition of "intoxicated" on which it intended to rely at trial.

In its brief, the State confesses error. While we agree with the parties that the motion to quash on this ground was erroneously overruled, we find that the error did not prejudice the substantial rights of appellant and therefore affirm the judgment of conviction. Tex.Code Cr.P.Ann. art. 21.19 (1966).

The information in this cause alleges all of the elements of the offense of driving while intoxicated and is, therefore, not fundamentally defective. However, it is not enough that the charging instrument allege all the elements of the charged offense; it must also, as a matter of form, allege facts sufficient to give the accused precise notice of the nature and cause of the accusation against him. Tex.Const.Ann. art. I, § 10 (1984); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Thus, where a charging instrument contains a necessary allegation of an act or omission by the accused which, by statutory definition, may be performed in more than one way, but fails to specify which of the statutory definitions is relied upon, the charging instrument is subject to a motion to quash. Gibbons v. State, 652 S.W.2d 413 (Tex.Cr.App.1983) (must specify definition of "abduct" relied on in kidnapping prosecution); Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982) (must specify definition of "appropriate" relied on in theft prosecution); Ferguson v. State, 622 S.W.2d 846, 849 (Tex.Cr.App.1981) (opinion on rehearing) (must specify definition of "delivery" relied on in controlled substances prosecution). See also Thomas v. State, 621 S.W.2d 158, 160 (Tex.Cr.App.1981) (opinion on rehearing).

In a prosecution under art. 6701l -1, the prohibited act is being intoxicated while driving. Under the statutory definition of "intoxicated" quoted above, a person may commit this prohibited act in one of two distinct ways: (1) by driving while not having the normal use of his mental or physical faculties by reason of the introduction of alcohol or a controlled substance, or (2) by driving while having an alcohol concentration of 0.10 or more. In order to meet scientific evidence of an alcohol concentration of 0.10 or more obviously requires a defensive strategy completely different from that required to meet evidence that the defendant did not have the normal use of his mental or physical faculties. It is therefore apparent that, in order to adequately prepare his defense, a person accused of driving while intoxicated must be notified which statutory definition of "intoxicated" the State intends to prove. We hold the trial court erred in overruling appellant's motion to quash requesting this information.

Although we have found that the trial court erred in overruling appellant's motion to quash, it does not follow that the judgment of conviction must be reversed. This was explained in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App., 1986), affirming 669 S.W.2d 339 (Tex.App.1984):

The important question is whether a defendant had notice adequate to prepare his defense. The first step in answering this question, but only the first step, is to decide whether the charging instrument failed to convey some requisite item of "notice". The next step is to decide whether, in the context of the case, this had an impact on the defendant's ability to prepare a defense, and, finally, how great an impact. To the extent that the holding on State's motion for rehearing in [Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981) (opinion on rehearing) ] bars the further inquiry mandated by [Tex.Code Cr.P.Ann. art. 21.19 (1966) ] the holding in Jeffers is overruled. The court of appeals in the instant case was correct to review the record for prejudice to appellant's substantial rights from the defective form in the charging instrument.

Adams was a prosecution for promotion of obscene material. In his motion to quash, appellant contended that because the police seized two films, and because...