Lerma, Jose Angel ( 2015 )

PD-0745-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
July 23, 2015 Transmitted 7/22/2015 3:38:23 PM
Accepted 7/23/2015 9:32:50 AM
ABEL ACOSTA
CASE NO. PD-0745-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CAUSE NO. 13-13-00369-CR
(Transfer Case No. 05-13-00765-CR)
__________________________________________________________________
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
OF OPINION AND JUDGMENT IN CAUSE NO. 13-13-00369-CR
(Transfer Case No. 05-13-00765-CR) ABOUT THE JUDGMENT IN
CAUSE NO. NO. 219-8193-2012 FROM THE 219th DISTRICT COURT
OF COLLIN COUNTY, TEXAS
__________________________________________________________________
JOSE ANGEL LERMA, Appellant
VS.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
Respectfully submitted,
Derek M. Harkrider
Texas Bar No. 24000601
P.O. Box 524138
Houston, Texas 77052
(956) 318-0099 Telephone
(956) 318-0877 Facsimile
harkriderlaw@gmail.com
Attorney for Appellant
1
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Under applicable statutes and Texas Rules of Appellate Procedure [TRAP]
66, et seq., appellant, Jose Angel Lerma, petitions for discretionary review.
2
IDENTIFICATION OF PARTIES AND COUNSEL
Appellant certifies that below is a complete list of all parties to the trial
court’s judgment and their trial counsel’s names, addresses, and telephone
numbers.
1. The trial court judge was the Honorable Scott Becker of the 219th District
Court of Collin County, Texas
2. Appellant is Jose Angel Lerma, 1220 Bedford Lane, Lewisville, TX 75077.
3. Appellant’s trial attorney was Hon. Brock Duke, 206 S. Kentucky Street,
Suite 101, McKinney, TX 75069, (214) 736-1183. The State of Texas,
Appellee, was represented at trial by the Collin County District Attorney,
Hon. Greg Willis, by and through Assistant District Attorney, Hon. Lauren
Hopkins.
4. Appellee is represented on appeal by Hon. John Rolater, Chief of Appellate
Division, and Hon. Libby Lange, Assistant District Attorney, at 2100
Bloomdale Road, Suite 100, McKinney, Texas 75071. Their telephone is
(972) 548-4323. Their facsimile number is (214) 491-4860.
/s/ Derek M. Harkrider
DEREK M. HARKRIDER
3
TABLE OF CONTENTS
Identity of Parties and Counsel………………………………………… ................ ..3
Table of Contents………………………………………… ..................................... ..4
Index of Authorities………………………………………… ................................. ..5
Statement Regarding Oral Argument………………………………………… ...... ..6
Statement of the Case………………………………………… .............................. ..6
Statement of Procedural History………………………………………….............. ..6
Grounds for Review………………………………………… ................................. ..8
Argument………………………………………… ................................................. ..9
SHOULD THE COURT OVERRULE ITS HOLDING IN STATE v.
BARBERNELL IN FAVOR OF PRIOR PRECEDENT AS HELD IN
STATE v. GARCIA AND STATE V. CARTER, REQUIRING THE
STATE TO INFORM THE DEFENDANT IN THE CHARGING
INSTRUMENT OF THE TYPE OF INTOXICANT AND THE
DEFINITION OF INTOXICATION IT INTENDS TO PROVE AT TRIAL?8
Prayer ………………………………………… .................................................... ..21
Certificate of Compliance ………………………………………… ..................... ..22
Certificate of Service ………………………………………… ............................ ..23
Appendix …………………………………………............................................... ..24
Memorandum Opinion:
Jose Angel Lerma v. State, No. 13-13-00369-CR (Tex. App.– Corpus
Christi, delivered April 23, 2015) (not designated for publication)
4
INDEX OF AUTHORITIES
CASES
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ................................... 10
Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978) ........................................ 12
Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 2012) ................................. 13
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000 .....................................10, 19
Dennis v. State, 647 S.W.2d 275 (Tex. Crim. App. 1983) ...................................... 12
Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. 1980) ...................... 10, 16-17
Garcia v. State, 747 S.W.2d 379 (Tex. Crim. App. 1988) ...................................... 15
Geter v. State, 779 S.W.2d 403 (Tex. Crim. App. 1989) ....................................... 19
Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004) ................................. 15-16
Harrison v. State, 76 S.W.3d 537 (Tex. App.–Corpus Christi 2002) ................ 12-13
Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007) ................................. 10
Miller v. State, 333 S.W.3d 352 (Tex. App.–Ft. Worth 2010) ................................ 13
Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1979) ..................................... 10
Salahud-din v. State, 206 S.W.3d 790 (Tex. Crim. App. 2006) .............................. 12
Solis v. State, 787 S.W.2d 388 (Tex. Crim. App. 1990) ........................................ 19
State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008) ............... 13-14, 16-18
State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991) ..................... 14, 16-17, 19
State v. Cordell, 34 S.W.3d 719 (Tex. App.– Fort Worth 2000)............................. 19
State v. Goodman, 221 S.W.3d 116 (Tex. App.–Ft. Worth 2006) .......................... 12
State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998) ....................................... 10
State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) ......................................... 12
State v. Shuck, 222 S.W.3d 113 (Tex. App.–Houston 2006) .................................. 12
Thomas v. State, 621 S.W.2d 161 (Tex. Crim. App. 1981) ................................... 19
STATUTES AND CONSTITUTION
Tex. Code Crim. Proc. Art. 21.03 ............................................................................ 13
Tex. Code Crim. Proc Art. 21.04 ............................................................................. 12
Tex. Code Crim. Proc. Art. 21.11 ............................................................................ 12
Tex. Code Crim. Proc. Art. 21.19 ............................................................................ 12
Tex. Code Crim. Proc. Art. 21.21 ......................................................................10, 12
Tex. Code Crim. Proc. Art. 21.23 ............................................................................ 12
Tex. Code Crim. Proc. Art 36.19 ............................................................................. 10
Tex. Pen. Code § 49.01 .............................................................................................. 9
Tex. Pen. Code § 49.04 .............................................................................................. 9
Texas Const. Art. I § 10 ........................................................................................... 12
United States Constitution, Sixth Amendment ........................................................ 12
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived, unless the court requests oral argument.
STATEMENT OF THE CASE
On August 16, 2012, a grand jury in Collin County, Texas returned and filed
a True Bill of Indictment against the Defendant, Jose Angel Lerma, charging him
with Driving While Intoxicated (DWI), a third degree felony. The indictment
alleged that the crime took place on or about May 26, 2012, and that the Defendant
had two prior convictions for Driving While Intoxicated, namely that the
Defendant was convicted of a DWI on November 17, 1995, in the County Court at
Law No. Five (5) of Dallas County, Texas, and that he was also convicted of a
DWI on September 10, 1997, in Dallas County, Texas. CR12.
STATEMENT OF PROCEDURAL HISTORY
On August 16, 2012, a grand jury in Collin County, Texas returned and filed
a True Bill of Indictment against the Defendant, Jose Angel Lerma, charging him
with Driving While Intoxicated (DWI), a third degree felony. On April 30, 3013,
the parties announced ready and the case proceeded to a jury trial. 2RR4-5. On
May 1, 2013, the jury found the Defendant guilty of the offense of Driving While
Intoxicated (DWI), a third degree felony. 3RR177.
After the jury verdict was read in open court, the State and the Appellant
announced that they had reached an agreement on punishment. 3RR178-179.
6
The court accepted the agreed punishment and, in open court, sentenced the
Defendant to ten (10) years imprisonment, however, the sentence was suspended
and the Defendant was placed on community supervision for seven years.
3RR179-180.
On May 31, 2013, the Defendant filed a pro se Notice of Appeal, and this
appeal ensued. CR84. After considering the briefs of Appellant and State, on
April 23, 2015, the Thirteenth Court of Appeals issued a Memorandum Opinion
affirming the trial court’s judgment.
On May 13, 2015, Appellant filed a Motion for Rehearing, and
Alternatively, Motion for Rehearing En Banc. On May 21, 2015, the Thirteenth
Court of Appeals overruled/denied the motions for rehearing. On June 17, 2015,
Appellant’s counsel, Derek Harkrider, requested an extension of time to file the
Appellant’s Petition for Discretionary Review (PDR). This Court granted an
extension of time to file the PDR until July 22, 2015.
7
GROUNDS FOR REVIEW
1. SHOULD THE COURT OVERRULE ITS HOLDING IN STATE v.
BARBERNELL IN FAVOR OF PRIOR PRECEDENT AS HELD IN
STATE v. GARCIA AND STATE v. CARTER, REQUIRING THE STATE
TO INFORM THE DEFENDANT IN THE CHARGING INSTRUMENT
OF THE TYPE OF INTOXICANT AND THE DEFINITION OF
INTOXICATION IT INTENDS TO PROVE AT TRIAL?
8
ARGUMENT
GROUND ONE:
SHOULD THE COURT OVERRULE ITS HOLDING IN STATE v.
BARBERNELL IN FAVOR OF PRIOR PRECEDENT AS HELD IN
STATE v. GARCIA AND STATE v. CARTER, REQUIRING THE
STATE TO INFORM THE DEFENDANT IN THE CHARGING
INSTRUMENT OF THE TYPE OF INTOXICANT AND THE
DEFINITION OF INTOXICATION IT INTENDS TO PROVE AT
TRIAL?
This ground for discretionary review is based on ISSUE NO. TWO raised in
the Appellant’s brief to the Thirteenth Court of Appeals. In his second point of
error, the Appellant argued that he was entitled to a new trial because the
indictment failed to define intoxication or the type of intoxicant the State intended
to prove at trial.
A person commits an offense if the person is intoxicated while operating a
motor vehicle in a public place. Tex. Pen. Code § 49.04. Intoxicated means (A)
not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any other substance into the
body; or (B) having an alcohol concentration of 0.08 or more. Tex. Pen. Code §
49.01.
The indictment states, “. . . then and there operate a motor vehicle in a public
place while said defendant was intoxicated.” CR12. The indictment fails to
9
include the definition of intoxication as defined above, no specify the type of
intoxicant alleged to have caused the intoxication. The definition of intoxication as
found in Tex. Pen. Code § 49.01 is essential to make the offense a crime, and is
indispensable to the indictment.
A criminal defendant is entitled to fair notice of the specific charged offense.
See U.S. Const. Amend. VI; Tex. Const. art. I, § 10. Lawrence v. State, 240
S.W.3d 912, 916 (Tex. Crim. App. 2007); Ferguson v. State, 622 S.W.2d 846, 849
(Tex. Crim. App. 1981 (opinion on reh’g). The charging instrument must convey
this notice sufficiently so that the accused may prepare his defense. Curry v. State,
30 S.W.3d 394, 398 (Tex. Crim. App. 2000) (citing State v. Mays, 967 S.W.2d
404, 406 (Tex. Crim. App. 1998). The information must set out the offense in
plain and intelligible words and must include everything that is necessary to be
proved. Tex. Code Crim. Proc. art. 21.21.
Since appellant did not file a motion to quash the indictment or object to the
offensive portion of the charge, the court may reverse for error on the charge, if
any, only if it is fundamental and “so egregious and created such harm that
appellant ‘has not had a fair and impartial trial.’” Almanza v. State, 686 S.W.2d
157, 172 (Tex. Crim. App. 1985); Tex. Code Crim. Proc. Art 36.19. Error in an
indictment is reversible if the indictment does not allege the constituent elements
of the offense. Russell v. State, 665 S.W.2d 771, 777 (Tex. Crim. App. 1979);
10
Dennis v. State, 647 S.W.2d 275, 278 (Tex. Crim. App. 1983); Brem v. State, 571
S.W.2d 314, 317 (Tex. Crim. App. 1978); Tex. Code Crim. Proc. Art. 21.19.
The sufficiency of the indictment is a question of law that the appellate
courts review de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). An indictment is legally sufficient if it tracks the penal statute in question;
however, in some cases, the State must further specify the acts it is prosecuting so
the defendant can adequately investigate the allegations against him and prepare a
defense. State v. Shuck, 222 S.W.3d 113 (Tex. App.–Houston 2006); Tex. Code
Crim. Proc. Art. 21.11. To presume that an accused is guilty and therefore already
knows the details of his offense, and thus can adequately prepare his defense
despite a vague indictment, is contrary to all proper principles of justice. State v.
Goodman, 221 S.W.3d 116 (Tex. App.–Ft. Worth 2006); U.S.C.A Const., Amend.
6; Texas Const. Art. 1 § 10; Tex. Code Crim. Proc Arts. 21.04, 21.21(7), 21.23.
An indictment must contain the elements of the offense, fairly inform the
defendant of charges he must prepare to meet, and enable the defendant to plead
acquittal or conviction in bar to future prosecution for the same offense. Harrison
v. State, 76 S.W.3d 537 (Tex. App.– Corpus Christi 2002); Tex. Code Crim. Proc.
Art. 21.11.
The failure to allege an element of an offense in an indictment is a defect in
the substance of the indictment. Salahud-din v. State, 206 S.W.3d 790 (Tex. Crim.
11
Ohio App. 2006). Everything that must be proved must be pleaded in the indictment.
Miller v. State, 333 S.W.3d 352, 356 (Tex. App.–Ft. Worth 2010); Harrison v.
State, 76 S.W.3d 537 (Tex. App.–Corpus Christi 2002); Tex. Code Crim. Proc.
Art. 21.03.
Relying on State v. Barbernell, the Thirteenth Court of Appeals (hereinafter
also referred to as “appellate court”) affirmed the trial court’s judgment of
conviction. Although the appellate court recognized that the United States and
Texas Constitutions grant criminal defendants “the right to fair notice of the
specific charged offense,” the appellate court found that the indictment was not
defective because in a DWI case, “the definitions of ‘intoxicated’ are purely
evidentiary matters” and “do not need to be alleged in a charging instrument to
provide a defendant with sufficient notice.” See Memorandum Opinion at p. 13
(citing State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008) (noting
that the definitions “set forth alternative means by which the State may prove
intoxication, rather than alternative means of committing the offense”). The Court
also cites Crenshaw v. State, wherein the Texas Court of Criminal Appeals
followed Barbernell, citing that the “State may simply allege that a person was
‘intoxicated’ to satisfy the notice requirement.” Crenshaw v. State, 378 S.W.3d
460, 466 (Tex. Crim. App. 2012) (citing Barbernell, 257 S.W.3d at 256).
The Barbernell court reversed longstanding precedent and revisited its
12
decision in State v. Carter, wherein the court held that the State must allege which
definition of intoxicated - “loss of faculties” or “per se” intoxication (i.e., alcohol
concentration) - that the State intends to prove at trial. State v. Carter, 810 S.W.2d
197 (Tex. Crim. App. 1991). However, in Barbernell, the court restricted its
analysis to whether or not the manner of intoxication, either loss of faculties or
alcohol concentration, is an element of the offense of driving while intoxicated
which must be alleged in the charging instrument. State v. Barbernell, 257
S.W.3d at 250.
In Barbernell, the trial court sustained the defense motion to quash due to the
State’s failure to allege which definition of “intoxicated” that it intended to prove
at trial. The court of appeals affirmed the trial judge’s decision reasoning that
intoxication is an act or omission and that the definitions of “intoxicated” provide
for different means of commission. However, the Court of Criminal Appeals
reversed and vacated the judgement holding that “intoxicated” does not describe
and act or omission.
The defense relied on the Court of Criminal Appeals’ 1991 decision in State
v. Carter, which held that the State must allege which definition of intoxicated -
“loss of faculties” or “per se” intoxication (i.e., alcohol concentration) - that the
State intends to prove at trial. State v. Carter, 810 S.W.2d 197 (Tex. Crim. App.
1991). Barbernell claimed that the information failed to provide him with adequate
13
notice of the manner and means (i.e., the definition of “intoxicated” the State
intended to prove) in which he committed the offense. In response, the State relied
on the Court of Criminal Appeals 2004 opinion in Gray v. State, which held that
the definitions of “intoxicated” are not elements of DWI. See Gray v. State, 152
S.W.3d 125 (Tex. Crim. App. 2004). This will be discussed in more detail later in
this petition.
The Barbernell Court acknowledged that in its 1988 decision in Garcia, the
court held that in order to provide adequate notice, the State must allege the
specific type of intoxicant(s) the defendant allegedly used to become intoxicated.
Barbernell, 257 S.W.3d at 252 (citing Garcia v. State, 747 S.W.2d 379, 381 (Tex.
Crim. App. 1988)). In Garcia, the Court of Criminal Appeals reasoned that the
prohibited conduct of becoming intoxicated depends on an act or omission of the
defendant, and that such conduct, under the first definition for “intoxication,” “can
be accomplished in several different ways.” Id. The type of intoxicant “becomes
an element of the offense and critically necessary to the State’s proof.” Id. The
Court held that Garcia was not provided adequate notice. Id. In Garcia, the Court
of Criminal Appeals referred to Ferguson v. State, where the Court held that when
an act or omission by a defendant is statutorily defined, and that definition
provides more than one way to commit the act or omission, then, upon timely
request, the State must allege the manner and means it seeks to establish. Garcia
14
v. State, 747 S.W.2d at 379 (citing Ferguson v. State, 622 S.W.2d 846, 851 (Tex.
Crim. App. 1981)). The type of intoxicant becomes an element of the offense and
critically necessary to the State’s proof. Id. Note that Garcia was later overturned
by the Court of Criminal Appeals, holding that the substance that causes the
intoxication is not an element of the offense. See Gray v. State, 152 S.W.3d 125,
132 (Tex. Crim. App. 2004).
The Barbernell court stated, “Approximately three years later, examining the
same statute in Carter, we built on Garcia’s holding and stated that, in addition to
alleging the specific type of intoxicant, the State must also allege the definition of
‘intoxicated’ that it intends to prove at trial to provide adequate notice.”
Barbernell, 257 S.W.3d at 252 (citing State v. Carter, 810 S.W.2d 197, 200 (Tex.
Crim. App. 1991). In Carter, the State did not allege the type of intoxicant (i.e.,
alcohol, controlled substance, drug, or a combination thereof) or specify what
definition of “intoxicated” the prosecutor would rely on at trial. Carter, 810
S.W.2d at 200. The court noted that the definitions of “intoxicated” describe two
types of DWI offenses, a “loss of faculties” offense and a “per se offense.” Id. In
Carter, the Court held that the information, which did not specify the type of
intoxicant Carter allegedly used or the definition of “intoxicated” that the State
would rely on at trial, did not provide Carter with adequate notice so he could
prepare his defense. State v. Carter, 810 S.W.2d at 200.
15
Like Garcia, the Carter court stated that “even though an act or omission by
a defendant is statutorily defined, if that definition provides for more than one
manner or means to commit that act or omission, then upon timely request, the
State must alleged the particular manner and means it seeks to establish.” Carter,
810 S.W.2d at 199 (citing Ferguson v. State, 622 S.W.2d at 851). The reason for
the exception is that a defendant is constitutionally entitled to know what behavior
he allegedly engaged in so that he can properly prepare a defense to that allegation.
Id. Under the constitutional guarantee of adequate notice, a defendant may not “be
left to guess or assume that the State [is] going to prove one or all the types of
[statutorily-defined] conduct. Id. In explaining its holding, the Court recognized
the “fundamentally different natures” of the loss of faculties definitions and the per
se alcohol concentration DWI offense. Carter, 810 S.W.2d at 200.
In Barbernell, the Court of Criminal Appeals recognized that Gray overruled
Garcia, but that it was not controlling of the issue about pleading the specific
definition of “intoxication,” as held in Carter. See Barbernell, 257 S.W.3d at 255.
The Court stated:
. . . our notice jurisprudence makes clear that the courts must engage
in a two-step analysis. First, a court must identify the elements of an
offense, which includes the forbidden conduct. Next, as to the second
inquiry, when the Legislature has defined an element of the offense
that describes an act or omission, a court must ask whether the
definitions provide alternative manners or means in which the act or
omission can be committed. If this second inquiry is answered in the
affirmative, a charging instrument will supply adequate notice only if,
16
in addition to setting out the elements of an offense, it also alleges the
specific manner and means of commission that the State intends to
rely on at trial.
Id. The Court then revisited Carter and stated that the Court’s analysis was
incorrect. Id. The Court asked “whether the definitions of ‘intoxicated’ concern
an act or omission to create two different manners and means of committing
DWI.” Barbernell, 257 S.W.3d at 256. The Court held that the definitions “set
forth alternative means by which the State may prove intoxication, rather than
alternate means of committing the offense.” Id. The Court further stated that the
definitions of “intoxicated” are purely evidentiary matters; therefore, they do not
need to be alleged in a charging instrument to provide a defendant with sufficient
notice.” Id. The Court overruled Carter and held that the definitions of
“intoxicated” in Section 49.01(2) are evidentiary and therefore need not be alleged
in a charging instrument. Id.
Appellant asserts that the Court should overrule Barbernell in favor of
following prior precedent as stated in Garcia and Carter (i.e., the State should be
required to plead in the charging instrument the type of intoxicant and the
definition of “intoxicated” upon which it intends to prove at trial). It is worth
noting that the Fort Worth Court of Appeals followed the holding in Carter,
holding that an indictment or information charging a person with driving while
intoxicated must allege which definition of “intoxicated” the State will attempt to
17
prove at trial and which type of intoxicant the defendant is accused of taking. See
State v. Cordell, 34 S.W.3d 719, 721 (Tex. App.– Fort Worth 2000) (citing State v.
Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991).
As stated previously herein, an accused has a right under the United States
and Texas Constitutions of adequate notice of the charges against him so that he
may adequately prepare a defense. In its Memorandum Opinion, the Thirteenth
Court of Appeals failed to discuss the Appellant’s argument that the indictment
was defective because it failed to allege the type of intoxication, to-wit, whether
the intoxication was by means of alcohol, a controlled substance, a drug, a
dangerous drug, a combination of two or more substances, or any other substances
in the body. See Brief of Appellant at p. 15.
It has long been held that in some cases, a charging instrument that tracks
the statutory language may be insufficient to provide a defendant with adequate
notice. Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). This is so
when the statutory language is not completely descriptive. Id. The statutory
language is not completely descriptive “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.” Solis v.
State, 787 S.W.2d 388, 390 (Tex. Crim. App. 1990); Geter v. State, 779 S.W.2d
403, 405 (Tex. Crim. App. 1989) (citing Thomas v. State, 621 S.W.2d 161 (Tex.
18
Crim. App. 1981).
The Barbernell court seems to undermine the importance of the actual act of
becoming intoxicated. There are several ways to become intoxicated, by alcohol,
by drugs, by a controlled substance, or by a combination of one or more
substances. The Garcia court recognized the importance of informing the accused
of what the State was alleging caused his intoxication. It is evident that an accused
would prepare his defense differently depending if he was alleged to be intoxicated
by way of alcohol as opposed to a controlled substance or drugs. These allegations
would have an impact on symptoms and evidence of intoxication. More
importantly, an accused’s decision and reliance on expert testimony would be
significantly affected depending on the intoxicant alleged by the State. Without
pleading the type of intoxicant in the charging instrument, the accused would not
be afforded a fair opportunity to prepare a defense to the accusation. Further, the
defense could not make an informed decision whether they needed an expert
witness pertaining to either intoxication by alcohol, a drug, controlled substance or
other substances. The Court should follow the previous precedent as held in
Garcia v. State.
Further, in Appellant’s case, the indictment clearly did not define
intoxication (i.e., not having the normal use of the mental or physical faculties as
opposed to the per se definition of intoxication). Appellant asserts that the Court
19
should reverse Barbernell in favor of the previous precedent as found in State v.
Carter. As previously discussed, defense strategy would heavily depend on the
specific definition of “intoxication” the State intends to rely upon at trial. The
defense would be at a disadvantage because they would not be able to make
informed decisions as to its defense theory, especially as it pertains to retaining an
expert witness. If the State is not required to plead the definition of intoxication,
then the defense would never know whether or not it needs an expert witness to
testify as to the per se intoxication (i.e., statutory limit) or as to symptoms of
intoxication related to loss of the normal use of physical or mental faculties.
Further, Barbernell fails to properly analyze the manner and means of
committing the DWI offense. Barbernell states that the alternate definitions of
“intoxication” are not alternate manner and means of committing the offense, and
therefore, do not have to be specifically pled, since they are just proof. However,
Barbernell fails to adequately consider that the per se definition of “intoxication”
only pertains to alcohol concentration, whereas the alternate definition also
includes drugs, controlled substances or other substances. Therefore, the forbidden
conduct is different, one by ingesting alcohol only, and the other possibly by also
ingesting drugs or controlled substances. Therefore, notice requirements demand
that the State inform the accused what specific act/conduct gave rise to the offense
(i.e., ingesting drugs/controlled substances or alcohol).
20
Accordingly, the Court of Criminal Appeals should grant discretionary
review on this issue for the reasons stated herein.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court grant discretionary review and, after full briefing on the merits,
issue an opinion reversing the Court of Appeals’ judgment and remanding the
cause to the trial court for a new trial consistent with the holding of this Court.
Respectfully submitted,
By: /s/ Derek M. Harkrider
DEREK M. HARKRIDER
TBN: 24000601
P.O. Box 524138
Houston, Texas 77052
(956) 318-0099 Telephone
(956) 318-0877 Facsimile
harkriderlaw@gmail.com
Attorney for Appellant
21
CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Texas Rule of Appellate Procedure 9.4(i)(3),
that the following First Amended Motion for Rehearing Or, In the Alternative, For
Rehearing En Banc conforms with Texas Rule of Appellate Procedure 9.4, in that
this brief is a computer generated document created in MS Word, is printed in a
conventional typeface, to-wit, New Times Roman, in 14-point font, and the
computer generated word count of the parts of this motion to be counted according
to Rule 9.4(i)(1) is 4,164 words, excluding the caption, signature block, certificate
of compliance and certificate/proof of service. Therefore, this document complies
with the word count requirements as it does not exceed 4,500 words.
/s/ Derek M. Harkrider
DEREK M. HARKRIDER
22
CERTIFICATE OF SERVICE
I, DEREK M. HARKRIDER, hereby certify that on July 22, 2015, a true and
correct copy of the foregoing document has been forwarded via electronic delivery
and/or certified mail to:
Hon. Greg Willis
Collin County District Attorney
Hon. John Rolater
Chief of Appellate Division
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
And
Hon. Lisa C. McMinn
State’s Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711-3046
/s/ Derek M. Harkrider
DEREK M. HARKRIDER
23
APPENDIX
1. Memorandum Opinion
24
NUMBER 13-13-00369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE ANGEL LERMA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 219th District Court
of Collin County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
Appellant, Jose Angel Lerma, appeals his third conviction for driving while
intoxicated (“DWI”), a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04(a),
49.09(b)(2) (West, Westlaw through 2013 3d C.S.). The trial court assessed punishment
at ten years’ imprisonment, suspended the sentence, and placed Lerma on community
supervision for seven years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (West,
Westlaw through 2013 3d C.S.). We affirm.1
I. BACKGROUND
Clayton Platt testified that he was employed as a highway patrol trooper and was
patrolling the Sam Rayburn Tollway in McKinney, Texas, at around 1:00 a.m. on May 26,
2012. Platt was parked in his marked patrol car on the northbound shoulder when he
heard a “loud, grinding noise coming up.” He observed “a passenger car on the access
road traveling northbound” with “what appears to [be] no tire on the front left and it’s just
sparking as it’s driving along, sparks coming out the sides and sparks coming out the
rear.” Platt drove up behind the car and activated his emergency lights. The driver, whom
Platt identified as Lerma, “[d]idn’t appear to react at all” to the emergency lights.
According to Platt, Lerma was “driving relatively slowly but weaving the whole time.”
Another officer pulled up alongside Lerma “in order to get [his] attention.” Platt used his
patrol unit’s public address system—“turned up as loud as it could be”—to demand that
Lerma stop. Eventually, after about a minute and a half, the car stopped. Platt removed
Lerma from the car at gunpoint. Because Lerma “wasn’t really complying,” another officer
“did a leg sweep” and “took him to the ground.”
Platt stated: “At that point [we] went up and just started talking with him. We’re
talking with him, there’s an immediate strong odor of alcohol coming from his
breath. . . . His eyes were really glassy.” Platt therefore decided to conduct three
standardized field sobriety tests: horizontal nystagmus, walk-and-turn, and one-leg
stand. In order to determine whether Lerma was a good candidate for a horizontal
1This appeal was transferred from the Fifth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
2
nystagmus test, Platt asked Lerma about any prior head injuries. Lerma stated that he
“hit [his head] on the first-aid kit . . . at his office” but did not indicate that “he was still
having issues with [the injury].” Lerma also complained of “flu-like symptoms” and that
his head was hurting. Platt determined that Lerma was a good candidate for the
horizontal nystagmus test. The horizontal nystagmus test showed clues of “lack of
smooth pursuit,” “distinct and sustained nystagmus at maximum deviation,” and “onset of
nystagmus prior to 45 degrees” in each eye. According to Platt, these results “certainly
indicated intoxication at that point.”
In order to determine whether Lerma was a good candidate for the walk-and-turn
test, Platt asked Lerma if he had any leg or back injuries. Lerma told him that “a month
or two ago . . . a piece of steel hit him in the shin at work.” Platt testified: “So—he’d
already informed me that he worked at a data entry center, so I was a little—little confused
at this point at the—it’s a pretty dangerous data entry center to be having all these injuries
he had.” Lerma also “said he had a little pain in his back but nothing that would keep him
from walking.”2 Platt determined that Lerma was a good candidate for this test. After
administering the test, Platt observed two out of a possible eight clues of intoxication; in
particular, Lerma “failed to keep his balance during the instructions” and “did not touch
heel-to-toe as instructed.” Platt stated that, for this test, “two or more clues indicate
intoxication.”
Finally, Platt administered a one-leg stand test. During this test, Lerma was asking
2 When asked whether “for every test [Lerma] gave you a reason why he might have an injury in
that area,” Platt replied: “He did.” However, he did not believe those alleged injuries would affect his ability
to perform the sobriety tests because: “Not only did I ask him if he’s okay to perform them, but I didn’t see
any indication other than him saying that happened . . . that it was still affecting him.”
3
“confusing” questions and was “not really communicating effectively.” 3 Platt observed
three out of a possible four clues of intoxication; in particular, Lerma was “swaying back
and forth,” he put his foot down, and he hopped. Platt stated that, as with the walk-and-
turn test, the presence of two or more clues in this test indicates intoxication. Based on
the results of all three field sobriety tests, Platt placed Lerma under arrest for DWI.
After the arrest, Platt placed Lerma in his patrol unit and asked for consent to take
a breath sample or a blood sample. Lerma refused to consent to either. However, Platt
stated that he was authorized by law to take a mandatory blood sample, see TEX. TRANSP.
CODE ANN. § 724.012(a) (West, Westlaw through 2013 3d C.S.),4 and so he transported
Lerma to the Medical Center of McKinney for that purpose. After the blood sample was
taken at around 2:15 a.m., Platt took Lerma to the Collin County Jail. Subsequent
analysis of the blood sample revealed an alcohol concentration of .06 grams per 100
milliliters, which is below the legal limit in Texas. See TEX. PENAL CODE ANN. § 49.01(2)(B)
(West, Westlaw through 2013 3d C.S.).
Platt denied that Lerma ever mentioned that something unusual had happened to
him earlier that day. He denied that Lerma was hesitant or afraid to speak with him. Platt
stated that he never was aware of any information indicating that Lerma “might need
3 Platt testified that, even though Lerma stated that he was heading to his home in Lewisville, Lerma
was traveling northbound, away from Lewisville. Platt agreed that, at one point, Lerma “[was] sure he [was]
in Lewisville and [the officers were] messing with him.”
4 In fact, the mandatory blood draw statute requires an officer to take a breath or blood sample if
the officer has reliable information indicating that the DWI arrestee has two prior DWI convictions and the
arrestee refuses the officer’s request to submit to the taking of a sample voluntarily. See TEX. TRANSP.
CODE ANN. § 724.012(b)(3)(B) (West, Westlaw through 2013 3d C.S.). We have previously held that the
mandatory blood draw statute does not create a new and distinct exception to the Fourth Amendment
warrant requirement and that a blood draw is generally unconstitutional absent a warrant, exigent
circumstances, or consent. State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—
Corpus Christi Jan. 23, 2014, pet. granted). However, Lerma did not object to the admission of the blood
test results into evidence, and so we do not address that issue.
4
additional medical attention on that night.”
Platt testified that the fact that the alcohol content of Lerma’s blood sample was
under the legal limit does not affect his opinion about whether Lerma was intoxicated
because “it’s pretty clear from the totality of circumstances that night with dealing with him
that he was intoxicated.” Platt opined that “[i]t’s possible he was[] intoxicated solely on
alcohol, he just can’t handle .06,” and that, considering the blood test results, “it’s very
possible that he also had something else in his system.” He also speculated that Lerma’s
blood alcohol concentration may have declined somewhat between the time Lerma was
initially stopped by police and the time the blood was taken.
On cross-examination, Platt conceded that officers were unable to locate the tire
that had detached from Lerma’s car. He agreed that he had never been given training,
beyond “first responder basic training,” on how to identify symptoms of a stroke or other
neurological disorders. When asked whether it is possible that Lerma’s blood alcohol
concentration was below .06 at the time of driving, Platt replied: “Anything is possible,
sure.” He gave the same response to defense counsel’s question as to whether it was
possible that Lerma’s blood alcohol concentration increased from the time of driving to
the time of the blood draw.
DPS Trooper Matthew Kasenic testified that, on the night in question, he observed
Lerma’s vehicle “drive past me northbound on the service road with a loud grinding noise
and saw sparks, missing a tire.” While pursuing the vehicle along with Platt, he noticed
that the car was missing a tire on the front driver’s side. He shined a light on the driver
and noticed that the driver was “staring straight ahead” and “had both hands on the
steering wheel at a ten and two position.” The car eventually stopped and Platt directed
5
Lerma to get on the ground. According to Kasenic, Lerma did not comply with the order,
and so Kasenic “executed a leg sweep and placed the defendant on the ground behind
his vehicle and placed handcuffs behind his back.” Kasenic then searched Lerma for
weapons. Kasenic noted that Lerma’s “speech was slurred” and he “could detect a strong
odor of alcohol[ic] beverage.”
Kasenic asked Lerma where he was headed and what he was doing. Lerma
replied that he was coming from Social 121, a bar located in Plano, and that he was
“headed home to Lewisville.” When Kasenic asked Lerma about the tire, Lerma “said
that he stopped to put air in it and he was just going home right down the street.” Kasenic
testified that these answers did not make sense because Lerma was traveling away from
Lewisville, which was “two cities away from where he was actually at,” and because there
was no tire into which Lerma could have put any air. Kasenic could not recall Lerma ever
mentioning anything about feeling badly or having any problem with his legs or his head.
Kasenic opined that Lerma was intoxicated that night, and the fact that Lerma’s blood
tested under the legal limit did not change his opinion.
A video recording of the traffic stop was played for the jury.
Andrew Macey, a DPS forensic scientist, testified that he analyzed the blood
sample taken from Lerma and that it contained 0.062 grams of alcohol per 100 milliltires
of blood, which is the under the legal limit of .08 grams per 100 milliliters. See id. He
also testified as follows regarding the rates of elimination and absorption in the blood:
Absorption rate is pretty much the time it takes for your body to absorb one
drink or several drinks, just depends on how many drinks you
have. . . . Elimination is the amount that the time it takes for your body to
actually eliminate the alcohol from your body.
Because absorption is so tricky and being that everybody absorbs
differently, different factors go into it, different types of alcohol absorb at
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different rates. We just kind of like to have very wide range and say that
one drink would basically raise your alcohol level .01 to .03 per hour, that is
very broad. That’s not really known because everybody is different.
Elimination is a little bit more known and a little bit more consistent. The[re
a]re not as many factors that affect the elimination rate. So the range we
use on that is a little bit tighter, and it’s still kind of wide, and we use point
.01 to .02. It's probably closer to .015 to .018. But we use .01 to .02 just to
give an idea of the range it could be.
Macey stated that absorption rate can depend on, among other things, whether the
subject is male or female, what type of drink was consumed, whether other drugs were
consumed, and if the subject was ill. Elimination rate “normally depends on” whether the
subject is an experienced drinker or an alcoholic. Based on a blood alcohol concentration
test result and the absorption and elimination rates, a “retrograde extrapolation” can be
performed “to work backwards to have an idea of what the number would be at earlier
time of the day.” However, according to Macey, “it’s very difficult” to make a retrograde
extrapolation when the time of the last drink consumed is not known.
Macey opined that “[i]t is possible” that a person “could have consumed two beers,
been pulled over at 1:15 and then at 3:00 a.m. have an alcohol concentration of [.06].” In
Macey’s opinion, after an hour and 45 minutes of not drinking, a subject would be “more
on the elimination side than on the absorption side.” However, “[b]ecause the alcohol
curve goes up as you’re drinking and then you go down as you’re eliminating, there’s a
possibility in that hour and 45 minutes that you actually could be the same as you were
at the time of the draw or higher or lower.” He stated that, given Lerma’s blood test result
and the time elapsed since the traffic stop, his blood alcohol concentration at the time of
driving could have been “anywhere from .03 to .04” and “up to .08, .085.”
Lerma testified that he is forty-two years old, that he has lived in the Dallas/Fort
Worth area for about twenty years, and that he has lived in Lewisville in particular for
7
about six years. He works as an analyst at a data center in Lewisville. Lerma stated he
was not intoxicated on the night in question. He acknowledged that his memory regarding
what happened was not clear, but he stated that he suffered “flu-like symptoms” that day.5
He stated that he got off work at around 6:00 p.m. and later met some friends at Pier 121,
a marina and restaurant in Lewisville where alcohol is sold.6 Lerma testified that he “took
three beers with [him]” to Pier 121—because “from my experience, I knew my limit”—but
that he drank only two of them. While he was at Pier 121, he started getting a “really
massive headache” such that he “fe[lt his] head [was] about to explode.” His legs became
“wobbly and shaky” and his “vision started to go out after a while.” He stated he “couldn’t
focus” and “couldn’t think right.” Nevertheless, he testified: “I decided, you know, I just
could go home and sleep it off or something like that. So I thought I could drive and go
home, you know.”
When asked how he knew that he only drank two beers if his memory was faded,
Lerma stated: “Because I—I told the officer there was another beer in the car, you know.
And, like I said, I knew my limits, after the second beer I already started feeling nauseated
and headache and stuff—with a headache.” The next thing he remembered was being
in jail.
Lerma did not recall hitting anything with his car, driving on a rim, or how he ended
up in McKinney. He denied taking any illegal drugs that evening. He stated his headache
5 Lerma elaborated:
I just thought it was the flu, and I had to wait to get over it. It was one thing after another
one, you know, allergies and then a cough, and then this stuffed nose and just—just like—
I thought it was flu symptoms that I could just fight, you know, medication over the counter
and get it over with.
6 Lerma denied knowing about, or ever having been to, Social 121.
8
“lasted probably close to three months” and that he continued to have blurred vision for
“two, three days after” the night in question. He saw a doctor and was prescribed blood
pressure medication and antibiotics for a sinus infection. His symptoms did not go away,
however, which scared him. He did not see a specialist because he did not have
insurance at the time. He has since had other diagnostic tests. He is currently being
treated for cholesterol, high blood pressure, and “a bad nerve coming from my head back
over here.” He agreed with defense counsel’s suggestion that he is “being treated at this
time for possibly having an onset of a ministroke.” Lerma stated that a doctor informed
him that he experienced a ministroke, but a CAT scan of his brain “didn’t show anything
yet.” Lerma denied that his behavior on the night in question was the result of any
accidents suffered at work.
Lerma stated that he knew that his behavior on the night in question was due to a
“medical issue,” not due to intoxication, because “two beers are not going to make me act
like that, the way I was acting; that’s not going to happen, no.”
The jury convicted Lerma as charged and the trial court sentenced him as set forth
above. This appeal followed.
II. DISCUSSION
Lerma argues by two issues on appeal that (1) the evidence was insufficient to
support the conviction, and (2) the indictment was defective because it failed to define
intoxication.
A. Evidentiary Sufficiency
In reviewing the sufficiency of evidence supporting a conviction, we consider the
evidence in the light most favorable to the verdict to determine whether any rational trier
9
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports
conflicting inferences, we must presume that the trier of fact resolved any such conflicts
in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326
S.W.3d 195, 200 (Tex. Crim. App. 2010).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. A hypothetically correct jury charge in this case would
state that Lerma is guilty if he: (1) operated a motor vehicle in a public place while he
was intoxicated; and (2) had twice been previously convicted of DWI as alleged in the
indictment. See TEX. PENAL CODE ANN. §§ 49.04, 49.09. “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason
of the introduction of alcohol, a controlled substance, a drug, a
dangerous drug, a combination of two or more of those substances,
or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
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Id. § 49.01(2) (West, Westlaw through 2013 3d C.S.).7 The two definitions of “intoxicated”
are referred to as the “impairment” theory and the “per se” theory, respectively. Kirsch v.
State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
Lerma does not dispute that the evidence was sufficient to show that he operated
his vehicle in a public place or that he was twice previously convicted of DWI. He
contends solely that the evidence was insufficient to support a finding of intoxication. We
disagree. Platt and Kasenic testified that Lerma drove his car without a front tire,
generating a trail of sparks. Platt stated that Lerma “[d]idn’t react at all” to his emergency
lights but instead drove slowly, “weaving the whole time,” and did not stop until Kasenic
pulled up alongside him and Platt used his public address system to order him to stop.
Platt testified that Lerma exhibited three clues of intoxication in the horizontal nystagmus
test; that he failed to keep his balance or “touch heel-to-toe” in the walk-and-turn test; and
that he swayed back and forth, put his foot down, and hopped during the one-leg stand
test. Kasenic stated that Lerma’s speech was slurred and both officers related that Lerma
gave nonsensical and confused answers to their questions. Crucially, the officers both
testified that there was a “strong odor” of alcohol coming from Lerma’s breath when he
was removed from the car. All of this evidence, taken together, would allow a reasonable
trier of fact to conclude beyond a reasonable doubt that Lerma did “not have[] the normal
use of mental or physical faculties by reason of the introduction of alcohol.” See TEX.
PENAL CODE ANN. § 49.02(1)(A); Kirsch, 306 S.W.3d at 745 (noting that “evidence that
would logically raise an inference that the defendant was intoxicated at the time of driving”
7 For blood tests, “alcohol concentration” means the number of grams of alcohol per 100 milliliters
of blood. TEX. PENAL CODE ANN. § 49.01(1) (West, Westlaw through 2013 3d C.S.)
11
includes “erratic driving,” “post-driving behavior such as stumbling, swaying, slurring or
mumbling words” and “inability to perform field sobriety tests or follow directions”).
Lerma contends that his “erratic behavior could be easily explained by
medical/neurological conditions.” Even assuming that is true, it was the jury’s prerogative
to believe or disbelieve that explanation. See Padilla, 326 S.W.3d at 200. It chose not to
believe that explanation, and because there was evidence to support its decision, we may
not disturb it.
Lerma also argues that “it should be undisputed that there was insufficient
evidence to support that [his] blood alcohol concentration was of .08 or more.” See TEX.
PENAL CODE ANN. § 49.01(2)(B). It is indeed undisputed that Lerma’s blood sample
contained an alcohol concentration of .062, and that this is under the legal limit. See id.
However, Macey testified generally that a person’s alcohol concentration at the time of
driving may be higher or lower than the level established by the blood test results
depending on the length of time that elapsed between the driving and the blood test and
on the absorption and elimination rates.8 In any event, under the statute, the jury was
authorized to convict if it found that Lerma was intoxicated either under the “impairment”
or “per se” definitions.9 See id. § 49.01(2); Kirsch, 306 S.W.3d at 743. We have already
8 Macey testified that, given the blood test results and the elapsed time between the arrest and the
blood draw, Lerma’s blood alcohol concentration at the time of driving could have been “anywhere from .03
to .04” and “up to .08, .085” depending on the rates of absorption and elimination. However, there was
confusion at trial as to how much time elapsed between the arrest and the blood draw. Platt testified that
the stop “was around 1:15 in the morning” and the blood sample was taken “probably about 2:10, 2:15 in
the morning”; but in questions posed to Macey, the prosecutor repeatedly referred to the time of the blood
draw as “3:00 a.m.” It appears that Macey assumed that the blood sample was taken at 3:00 a.m. in giving
his estimates regarding retrograde extrapolation. For this reason, we do not consider this specific testimony
probative as to Lerma’s potential alcohol concentration at the time of driving.
9The jury charge in this case contained only the “impairment” definition of “intoxicated.” See TEX.
PENAL CODE ANN. § 49.01(2)(A) (West, Westlaw through 2013 3d C.S.). Generally, if there is evidence to
support both definitions of the term, both should be submitted in the jury charge. Kirsch v. State, 306
S.W.3d 738, 743 (Tex. Crim. App. 2010).
12
concluded that there was sufficient evidence to prove intoxication under the “impairment”
definition. Accordingly, even if the evidence was insufficient to establish “per se”
intoxication, the conviction was nevertheless supported by sufficient evidence.
We overrule Lerma’s first issue.
B. Indictment
By his second issue, Lerma argues that the indictment was defective because it
failed to define intoxication. He argues that “[t]he definition of intoxication as found in
[penal code section] 49.01 is essential to make the offense a crime, and is indispensable
to the indictment.”
The State contends that Lerma waived the issue because he did not move to quash
the indictment or otherwise object to it prior to trial. We agree.
If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial
on the merits commences, he waives and forfeits the right to object to the
defect, error, or irregularity and he may not raise the objection on appeal or
in any other postconviction proceeding.
TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West, Westlaw through 2013 3d C.S.). Because
Lerma did not present this argument to the trial court at any time, it has not been
preserved for appeal. See id.; see also TEX. R. APP. P. 33.1(a).
Even if the issue had been preserved, it would not be meritorious. The United
States and Texas Constitutions grant criminal defendants “the right to fair notice of the
specific charged offense.” State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App.
2008) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10); see TEX. CODE CRIM. PROC.
ANN. art. 21.11 (West, Westlaw through 2013 3d C.S.). But in a DWI case, “the definitions
of ‘intoxicated’ are purely evidentiary matters” and “do not need to be alleged in a charging
instrument to provide a defendant with sufficient notice.” Barbernell, 257 S.W.3d at 256
13
(Tex. Crim. App. 2008) (noting that the definitions “set forth alternative means by which
the State may prove intoxication, rather than alternate means of committing the offense”);
see Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
Lerma’s second issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of April, 2015.
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