Otto, Adriane Elaine ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1397-04

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ADRIANE ELAINE OTTO, Appellant

v.

THE STATE OF TEXAS

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

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   PER CURIAM. MEYERS, J., not participating. O P I N I O N

Adriane Otto was convicted of felony driving while intoxicated and sentenced to four years' imprisonment. Otto appealed her conviction, alleging that the submitted concurrent cause instruction permitted a conviction on a theory not alleged in the indictment, namely, that her intoxication was caused by a combination of drugs and alcohol.

The Court of Appeals disagreed and held that the instruction did not conflict with the remainder of the charge and did not permit a conviction on an alternate theory not included in the indictment. ⁽¹⁾

When the Court of Appeals issued its opinion in this case, it did so without the benefit of this Court's recent opinion in Gray v. State. ⁽²⁾ Therefore, we remand for the Court of Appeals to consider the effect of Gray, if any, on its reasoning and analysis in this case.

DATE DELIVERED: SEPTEMBER 28, 2005

PUBLISH

1. Otto v. State, 141 S.W.3d 238, 241 (Tex. App.-- San Antonio 2004).

2. 152 S.W.3d 125 (Tex. Crim. App. 2005).