STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
ELEVENTH COURT OF APPEALS TAYLOR COUNTY
Hervey, J., delivered the opinion of the Court in which
Keasler, Alcala, Richardson, Newell, and Walker, JJ., joined.
Richardson, J., filed a concurring opinion. Keller, P.J.,
filed a dissenting opinion in which Yeary and Keel, JJ.,
joined. Yeary, J., filed a dissenting opinion in which
Keller, P.J., joined.
Lee Burnett was charged with driving while intoxicated after
he rear-ended another vehicle. The State alleged that Burnett
was intoxicated "by not having the normal use of his
mental and 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, and any
other substance into his body . . . ." The jury charge
included that language in the abstract and application
portions of the charge. Burnett objected to including the
entire "loss of faculties" statutory definition in
either portion of the charge because the evidence showed
that, if he was intoxicated, it was only due to alcohol, not
anything else. His objection was overruled, and the jury
convicted him. He was fined $1, 000 and sentenced to 120
days' confinement in the county jail, which was probated
for eighteen months.
appeal, he made the same argument: the jury should have been
instructed that "intoxication" only means "not
having the normal use of mental or physical faculties by
reason of the introduction of alcohol . . .
." The court of appeals agreed, holding that
it was error to submit the entire definition because no
rational jury could conclude that Burnett consumed
intoxicating drugs based on the evidence. In reaching its
conclusion, the court of appeals distinguished our decision
in Ouellette v. State, 353 S.W.3d 868 (Tex. Crim.
App. 2011). We granted the State's petition for
discretionary review to decide whether the lower court erred
when it distinguished Ouellette from the facts of
this case. Because we agree with the analysis of the court of
appeals, we will affirm its judgment.
rear-ended a vehicle occupied by Michael Bussey and Nathan
Chappa. After the wreck, Bussey saw Burnett get out of his
car and "kind of stagger" to his vehicle. When
Burnett got there to ask if everyone was okay, Bussey rolled
down his window, and he and Chappa caught a "whiff"
of alcohol. Chappa said Burnett had glassy and bloodshot
eyes, but Bussey only noticed that Burnett was slurring his
words. They both thought that Burnett was
Clinton Coapland was the first to arrive on scene. When he
made contact with Burnett, Burnett's speech was slurred.
He also had to ask Burnett the same questions multiple times.
When Coapland leaned towards Burnett to hear him better,
Coapland smelled the faint odor of alcohol, but he did not
see that Burnett's eyes were glassy or bloodshot.
Coapland radioed for backup. Once Officer William Allred
arrived, he began to secure the scene while Coapland began
his DWI investigation. Coapland asked Burnett if he had been
drinking and whether he would consent to taking standard
field sobriety tests (SFSTs). Burnett said that he had not
been drinking and consented to take the tests. He showed
signs of intoxication during the horizontal-gaze nystagmus
test (HGN test), the walk-and-turn test, and the
one-leg-stand test. Coapland concluded that Burnett was
intoxicated and arrested him. Incident to the arrest,
Coapland searched Burnett and found twenty white pills and
one blue pill in his jacket. Meanwhile, Allred performed an
inventory search of Burnett's car and found pills, a
laptop, and a Ruger in a bag in the front-seat of the car. He
also found a prescription pill bottle in the car. The bottle
was not photographed or admitted into evidence. According to
Coapland, Allred told him that the bottle was for the
medication found in Burnett's coat pocket and that the
pills may be hydrocodone. Allred, however, contradicted
Coapland, testifying that he did not remember if the
prescription pill bottle was for the pills they found.
State charged Burnett with Class B misdemeanor DWI and
alleged that he was intoxicated "by not having the
normal use of his mental and physical faculties by reason of
the introduction of alcohol, a controlled substance, a drug,
a dangerous drug, a combination of two or more of the
substances, and any other substance into his body . . .
filed a motion to suppress, arguing that the officers should
not be permitted to testify as to what type of pills they
found because they were not drug recognition experts (DREs).
The trial court agreed and ruled that the officers were not
allowed to testify that they thought the pills were
hydrocodone. The next day, however, the issue of the pills
came up again. During this discussion, the State told Burnett
and the court that there was video footage from the scene
during which Coapland, Allred, and Burnett spoke about the
pills. The video showed that, after Coapland found the pills
in Burnett's jacket, he gave them to Allred, who said
that the pills looked like hydrocodone. Allred asked Burnett
whether he had a prescription for the medication, and Burnett
responded that he did. The State argued that the evidence of
Burnett's pill possession should be admitted into
evidence as same-transaction contextual
evidence. Burnett again objected that the officers
were not DREs and so were not qualified to testify about what
kind of pills they found or any potential intoxicating
effects. He also made other objections that are not relevant
here. The trial court ruled that the pill evidence was
admissible as same-transaction contextual
raised two issues in the court of appeals. In his first point
of error, he argued that the trial court erroneously admitted
evidence that Burnett was in possession of hydrocodone.
Burnett v. State, 488 S.W.3d 913, 916 (Tex.
App.-Eastland 2016). In his second point of error, he
asserted that the trial court erroneously instructed the jury
that it could convict him if it found that he was intoxicated
by reason of the introduction of anything other than alcohol
into his system. Id. In addressing his second issue,
the court of appeals explained that it is insufficient for a
charge to incorporate only the allegations in the charging
instrument; "it must also apply the law to the facts
adduced at trial." Id. at 923 (citing Tex. Code
Crim. Proc. art. 36.14) (quoting Gray v. State, 152
S.W.3d 125, 127 (Tex. Crim. App. 2004)). It next turned to
our decision in Ouellette, in which we suggested
that it could be error to submit the full "loss of
faculties" definition of intoxication if the evidence
shows only alcohol intoxication. Id. at 923.
According to the court, Ouellette is distinguishable
from the facts of this case because, in this case a rational
juror could not have reasonably inferred that Burnett
ingested drugs, unlike in Ouellette where the
evidence permitted such an inference. Id.
to the facts of this case, Ouellette rear-ended another car
and was charged with DWI "by reason of the introduction
of alcohol, a controlled substance, a drug, a dangerous drug,
or a combination of two or more of those
substances[.]" Ouellette, 353 S.W.3d at 868-69.
The responding officer testified that Ouellette "was
acting unusual and that he smelled alcohol on her
breath." Id. at 869. He thought that Ouellette
could be intoxicated and asked for a member of the Austin
Police Department's DWI task force to start an
investigation. Id. Officer Mabe responded. Ouellette
told Mabe that she drank one glass of wine earlier that
evening, and she agreed to perform some SFSTs. Mabe
administered two tests, and Oullette showed signs of
intoxication, so Mabe arrested her for DWI "[b]ased on
the results of the tests, physical symptoms of
intoxication, and the odor of alcohol on her breath[.]"
Id. After the arrest, police found three different
types of pills in Ouellette's car.
Mabe confronted Ouellette about the pills, Ouellette said
that she recognized two of them as Soma and Darvocet, but
that she did not know what the third one was. Id. at
869. According to her, she had a prescription for all of the
medications and had not taken any of them in over a month.
Id. To backup her story, she offered to provide a
blood sample, but she later withdrew that offer after Mabe
told her that the sample would also be checked for its
alcohol concentration. Id. Mabe testified that both
alcohol and Soma are central nervous-system depressants (CNS
depressants) that can cause the horizontal-gaze nystagmus
like the one he observed while administering the HGN
field-sobriety test. Id. During closing arguments,
the State told the jury that it could find that Ouellette was
intoxicated from drinking alcohol, from the Soma found in her
car, or from a combination of both alcohol and the
prescription medication. Id. The jury convicted
appealed her case to the Austin Court of Appeals, arguing
that the evidence showed that, if she was intoxicated, it was
due to only alcohol. Id. The court of appeals
rejected her claim, however, concluding that a jury could
have found that her intoxication was caused by the Soma found
in her car. Id.
losing in the court of appeals, Ouellette filed a petition
for discretionary review in this Court. We granted it to
decide whether it was proper for the charge to authorize
Ouellette's conviction under the theory that she was
intoxicated by a drug or a combination of alcohol and a drug,
although the only evidence of drug intoxication was the
prescription medications found in her car. Id. In
our analysis, we first noted that the DWI statute focuses on
whether a person is intoxicated while operating a motor
vehicle in a public place, not the specific substance that
caused a person to become intoxicated. Id. at 869.
We further explained that trial courts are required to
instruct juries regarding "law applicable to the case,
" which includes the elements of the offense and any
statutory definitions that affect the meaning of those
elements. Id. at 870. We have previously
suggested that giving an entire statutory definition may be
error when only a portion of a statutory definition is
relevant to the elements of the offense; however, we did not
have to reach that issue in that case because, even though
the drug-intoxication evidence was circumstantial "and
not obviously overwhelming, " it was nonetheless
sufficient to support the jury instruction. Id.
circumstantial evidence indicated that Ouellette showed signs
of having ingested a CNS depressant and that alcohol and Soma
are both CNS depressants. We affirmed the judgment of the
court of appeals, summarizing that,
In short, [Ouellette] appeared intoxicated, police found in
her vehicle a drug that could have produced the observed
symptoms of intoxication, and she refused a blood test.
Although there was no direct evidence that [Ouellette]
consumed the drug, there was evidence from which a rational
juror could have found that the defendant did so.
The jury charge in this case reflected the law as it applied
to the evidence produced at trial.
State argues that a jury charge should include the entire
"loss of faculties" definition, irrespective of the
trial evidence. According to it, the substance that caused a
person to become intoxicated is purely an evidentiary issue
because the focus is on only whether the defendant was
intoxicated, not the intoxicant. For support, the State
relies on Judge Cochran's dissenting opinion in Gray
v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004)
(Cochran, J., dissenting). It also contends that, by not
instructing the juries on the entire "loss of
faculties" definition, courts are contravening the
purpose of the expansive definition adopted by the
legislature. By way of hypothetical, it warns that,
If a criminal defendant were to demonstrate clear evidence of
extreme intoxication yet provides a breath sample showing a
blood alcohol level considerably below .08, the
defendant's own behavior is indicative that some other
substance contributed to his intoxication even if the exact
nature of the intoxicant is not known or cannot be
determined. Under the Eastland Court's rationale, the
jury charge in this defendant's case would only be
allowed to give an instruction on alcohol; the possibility
that the defendant may be intoxicated on "any other
substance" may not even be considered.
State's Brief on the Merits at 21.
responds that, while the State in its charging instrument
need only allege that the defendant was
"intoxicated" and is permitted to track the
language of the entire statutory definition, it is error to
give to the jury portions of a statutory definition that are
not supported by the evidence. He argues that the rule urged
by the State would invite the exact type of speculation that
we condemned in Hooper v. State, 214 S.W.3d 9, 15-16
(Tex. Crim. App. 2007), and that such guessing could ensnare
thousands of innocent Texans, such as fatigued drivers and
those with naturally bad balance, even though they never
ingested any substance as required to prove intoxication. He
also contends that the State misreads Judge Cochran's
dissent in Gray, and that she was "lament[ing]
the Court's holding in Garcia which required the
State to plead the specific intoxicant, and then allowed a
defendant to claim the State proved the incorrect intoxicant
. . . ." Appellant's Amended Brief on the Merits at
23 (citing Gray, 152 S.W.3d at 136). He also points
out that, in Gray, the majority concluded that,
although the State specifically pled alcohol intoxication and
presented proof that Gray was intoxicated by alcohol, the
synergistic-effect instruction given in that case was not
erroneous because there was also evidence that Gray took
anti-depressants and that those anti-depressants made him
more susceptible to becoming intoxicated by
alcohol. Here, however, Burnett contends that
there is no evidence that he was intoxicated by prescription
agree with Burnett that the State's reliance on Judge
Cochran's dissent is misplaced. Our reading of Judge
Cochran's opinion shows that she was in fact discussing
the State's pleading burden, not instructions in a jury
charge. This is evident from the passage directly following
the excerpt provided by the State,
This case is a prime example of the Dickensian hair-splitting
that we have allowed ourselves to fall into. Appellant makes
no claim that he was not intoxicated at the time he
rear-ended a fellow driver. He admits that he was a
physically and mentally impaired driver. His contention is
simply that he was not intoxicated because of the alcohol he
drank; instead, he was intoxicated because of the
anti-depressants he was taking. This is a "defense"
that is condoned, if not encouraged, by our decision in
Garcia which requires the State to allege the
precise substance that it thinks caused an impaired
driver's intoxication, and then permits that driver to
defend against the charge by claiming that he was intoxicated
on some other substance.
Gray, 152 S.W.3d at 136 (Cochran, J., dissenting).
decline the State's invitation to hold that the entire
statutory definition of "intoxicated" should be
included in every DWI jury charge regardless of the evidence
adduced at trial. The State is correct that the legislature
has adopted a broad definition of "intoxicated"
that focuses on whether a person is intoxicated and not the
agent that caused it. Ouellette, 353 S.W.3d at
869-70. We have explained that the State can use this to its
advantage by alleging in its charging instrument that the
defendant was simply "intoxicated" or by including
the entire statutory definition, instead of pleading the
specific intoxicant as was previously required. However, it
is the responsibility of the trial court to deliver to the
jury a written charge setting forth the "law applicable
to the case." Tex. Code Crim. Proc. art. 36.14. Part of
that duty includes applying the law to the facts of the case.
Gray, 152 S.W.3d at 127-28. And, although the trial
court is obliged to include in the jury charge statutory
definitions that affect the meaning of elements of the crime,
Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim.
App. 2009), the charge must also be tailored to the facts
presented at trial. That is, the trial court must submit to
the jury only the portions of the statutory definition of
"intoxicated" that are supported by the evidence.
To do otherwise is error.
State argues that, under this rationale, the jury was not
permitted to consider the possibility that the defendant was
intoxicated from "any other substance." We
disagree. The jury is permitted to consider whether a
defendant was intoxicated from "any other
substance" when there is evidence that the defendant
ingested a substance that caused him to become intoxicated or
there is sufficient evidence for a rational juror to infer
such. But, as we will explain, the record here does not
support that Burnett ingested a substance other than alcohol.
evidence here shows that Burnett was intoxicated because he
had been drinking alcohol. The witnesses and police could
smell it, and Burnett showed signs of intoxication during
three SFSTs, which as Coapland testified, is consistent with
a person that has lost his mental or physical faculties due
to the imbibement of alcohol. Burnett was also observed to
have slurred speech and glassy and bloodshot eyes. Police
later found hydrocodone pills in Burnett's vehicle, but
there is no evidence in this record as to what kind of drug
hydrocodone is, whether it can cause intoxicating effects, or
whether the symptoms of intoxication Burnett was experiencing
were also indicative of intoxication by hydrocodone. These
are critical elements that were present in Ouellette
but not in this case.
Ouellette, the arresting officer asked Ouellette
about the pills that were found in her vehicle, and she
expressly identified two of them. Here, Burnett did not tell
the officers that the pills were hydrocodone, although Allred
told Coapland that he thought they were hydrocodone. Allred
asked Burnett whether he had a prescription for the
medication he found,  and Burnett responded that he did.
Allred did not ask Burnett, however, whether the pills were
hydrocodone or whether he had a prescription for hydrocodone;
he simply asked Burnett if he had a prescription for
"those." And, Burnett never told the police that
the pills were hydrocodone or that he had a prescription for
hydrocodone. We agree with the court of appeals that this
interaction was insufficient for a jury to rationally infer
that the white pills were hydrocodone and that Burnett was
claiming to have a prescription specifically for hydrocodone.
In Ouellette, the officer testified that Ouellette
appeared intoxicated after ingesting a CNS depressant and
that alcohol and Soma (one of the medications Ouellette
identified), are both CNS depressants. This pivotal testimony
provided the link that ...