Gray, Thomas Kerr, Iii. ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-1202-03

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THOMAS KERR GRAY, III, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

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   Meyers, J., filed a dissenting opinion.

DISSENTING OPINION

I join Judge Cochran's dissenting opinion and add these comments regarding the jury charge in this case. A good method for determining whether a charge is correct is to consider the factors enumerated in Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), in describing a hypothetically correct jury charge. Under the sufficiency analysis in Malik, we stated that the "sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be 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. at 240.

The information in this case alleged only intoxication by alcohol. However, the application paragraph instructed the jury to convict the defendant if it found "intoxication by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical." This application paragraph was not authorized by the charging instrument. The best that I can discern from the majority opinion is that the trial court can now expand the application paragraph to include additional theories of liability and incorporate evidence on how the defendant became intoxicated even though that intoxicant was not pled in the information. I am afraid that I have not come across this authority before. Because this is error in the charge and Appellant timely objected, I would hold that the error was not harmless and reversal is required. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

For these reasons, I respectfully dissent.

Meyers, J.

Filed: December 15, 2004

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