*1 “permit,” usage, in common assumes word
the authority to consent. And there can be authority ownership to consent without
or control. The statute is not unconstitu- vague. argu-
tionally statutory As 42.111(a)(4) (Vernon
ment section 6.01,
Supp.1988) conflicts with section we
believe has misread section 6.01.
Here, in the case of as interference with custody examples
child and other cited appellant, proscribes the statute itself It is only omission to act. when the expressly penalize
offense does not must be
omission that there a violation statutory per- pre-existing duty
some impose
form the omitted act order to 6.01(a), (c) responsibility. Section
criminal
practice commentary. Appellant’s second
point is overruled. judgment is affirmed. GOWIN,
Larry Ray Appellant, Texas, Appellee.
The STATE
No. 12-87-00181-CR. Texas,
Court
Tyler.
July 1988. *2 BASS,
BILL Justice. appeal This is an from a conviction for (DWI). A driving intoxicated of this offense and appellant convicted the years’ punishment his at two con- assessed jail in and a fine of county finement $1,500.00. affirm. We p.m. night Thursday,
At 11:00 on the 11, 1986, County Deputy September Rains Sheriffs, Plemons, and Daniel Tom Jenkins Larry Ray arrested Gowin for DWI. Trav- eling Highway east on 35 near the town of Tawakoni, gray his East Gowin was highbeam Ford Grenada with approached in lights deputies on as him opposite squad their from the direction. car headlights dim his When Gowin failed to flashing of his response to ve- Jenkins’ highbeams, made deputies hicle’s a U- pursued turn and When lights, Jenkins turned on his car’s overhead began pull away. Gowin accelerated and deputies finally pulled He after the over nearly him three miles as his car chased for highway from weaved down the side to his car staggered from side. Gowin license. His handed Jenkins his driver’s alcohol, his slurred breath smelled speech loud and obscene lan- consisted of guage. deputies did conduct a they sobriety feared that field test because Believing might injure Gowin himself. intoxicated, arrested him Jenkins at the sheriff’s Upon for DWI. arrival intoxilyzer took the Emory, office Gowin registered the machine. test and a .21 on appellant brings points six of error. We affirm. error, Gowin point
In his con- first allowing court erred tends the trial testify. unlisted witness to an State’s Rick Saman on the State failed to include prior provided list of Gowin witnesses fingerprints By comparing trial. Gowin’s “pen pack,” with those found testified that Gowin was same Saman convicted person previously who had been past. Ap- on occasions in the of DWI four McCampbell, Emory, appel- J. Brad he denied a fair pellant contends that lant. he impartial because was unable jurors concerning Long, Atty., Sulphur question prospective Frank Dist. impartial juror ability a fair and appellee. their to be Springs, for despite any knowledge relationship prior of or witness to DWI convictions. Therefore, Saman. conclude trial court we allowing did not abuse its discretion in Sa- motion, Upon proper witnesses testimony. man’s they should be if disclosed will be used error, his second Gowin con- any stage Young the State at of the trial. tends that the trial erred overrul- 27 (Tex.Cr.App. *3 ing quash to motion the indictment be- 1977). If a witness who was not included allege cause to manner of his it failed the permitted testify, on a witness is to the list charged the intoxication. The indictment of standard review is whether the trial appellant there as follows: “did then and allowing court abused in the its discretion in operate drive and a a motor vehicle State, testify. Hightower witness to v. 629 public public a and place, to wit: road 920, (Tex.Cr.App.1981). S.W.2d 925 and highway, while the defendant was then determining to in two factors considered be there intoxicated and under the influence an whether of discretion has oc abuse intoxicating liquor....” of Subsection prosecutor curred are in whether the acted (a)(2) of art. 6701Z-1defines intoxicated as failing in provide bad faith to the defense follows: witness, with the name of the and whether (A) reasonably anticipate having the defendant could the use of mental not normal testify the or the despite physical that witness would the faculties reason of alcohol, the State’s failure to disclose witness’ introduction of a controlled sub- Bridge State, stance, drug, name. 726 a or a of two combination Moreover, (Tex.Cr.App.1986). 566-67 the or more of these substances into the by allowing body; trial court commits no error or testimony the of an unnamed State witness (B) of having an alcohol concentration prosecutor the has not in when acted bad 0.10 or more. testimony and
faith
when the
did not con
is
An indictment
sufficient when
Clay
cern a contested fact issue.
alleges
ordinary
in
con
it
the offense
(Tex.Cr.App.1974).
505 S.W.2d
885
degree
certainty
language
cise
with that
give
notice of the
prosecu
The record shows that the
that will
the defendant
particular
court to
morning
tor informed
court the
offense and enable the
the
before
inadvertently
place pronounce
proper judgment.
trial that he
failed
a
Tex.Code
to
1977).
(Vernon
art. 21.11
Saman’s name on the State’s list of wit Crim.Proc.Ann.
general
quash
gave
appellant’s
he
He The
rule is that a motion to
nesses
counsel.
sought are
night
the
he realized
will
if the facts
told
court that
the
be allowed
However, unless
giving
left Saman’s
off
notice.
before
that he
name
essential to
essential,
fact
need not
only
the list. Not
did he assert that he had
a
is
the indictment
faith,
upon by
plead
in
he
relied
the State.
not acted
bad
but
also claimed
evidence
621 S.W.2d
the
counsel should have Thomas v.
161
(Tex.Cr.App.1980);Phillips v.
597 S.W.2d
reasonably anticipated that Saman would
testify.
(Tex.Cr.App.1980).
he had
929
Definitions
prosecutor stated that
statute
couple
penal
a
terms
within a
informed
counsel
and elements
planned
evidentiary
need not be
days
essentially
he
to call
are
before trial that
How
alleged
as the
indi
an indictment. Thomas.
identify
Saman to
Gowin
same
ever,
act
though
for
an
or omission
previously
vidual
convicted
DWI.
even
defined,
statutorily
if that def
the
record also reveals that
indictment defendant
more
one manner
charged
prior felony
provides
con
inition
for
than
Gowin
two
with
therefore,
may com
DWI;
or
the
defense coun
means which
victions
defendant
omission,
fair notice
to mit the
then
sel was on notice that the State intended
act
al
requires that the State
prove prior
We find that
the defendant
DWI convictions.
means it will
lege
particular
manner or
prosecutor
the
did not act
bad faith and
the
State, reasonably
have
seek to establish. Gorman
should
(Tex.Cr.App.1982).
prosecutor
call a S.W.2d
anticipated that the
separate
of-
required to
elements of
DWI
urges
Gowin
that the State is
distinct
allege
fenses,
on
only specify
definition
intoxicated which
the modes of
to rely
it intends
at trial. The Texas Court
may rely upon
proof that
State
not
this
Appeals
of Criminal
has
addressed
intoxication,
is one essential
which
issue,
precise
decisions
offense of
element
split
Court of
have
the resolu
on
intoxicated.
of this
Russell
question.
tion
McGinty v.
S.W.2d at 477.
— Austin
reasoning in
court’s
We believe the
'd),
an
ref
stated that
McGinty
principles
consistent
quash
subject
indictment is
to a
motion
applied by
the Court of Criminal
allegation
an
act or
contains
of an
Thomas,
Phillips,
and Gorman.
In our
comprises
omission which
than one
more
view,
statutory definition of “intoxicat
statutorily
perform
defined means of its
go
act or omission of the
ed” does
to an
ance and
of the defi
fails
*4
or set
more than one manner
defendant
out
upon.
nitions is relied
may
in which the defendant
com
or means
Russell,
Relying on
the
Antonio
San
by
the act or omission
the
mit
denounced
Appeals
of
has twice
Court
held
It does
statute.
not describe two alterna
specify
to
State’s failure
which definition
ways
may
that the defendant
commit
tive
of intoxication it intended to
at trial
driving
act
the unlawful
of
while intoxicat
Ray
deprived
of
the defendant
fair notice.
simply
prosecution
supplies
ed. It
the
State,
939 (Tex.App.
— San
of proving
methods
the state or condi
two
State,
Solis v.
742
pet.);
Antonio
no
intoxication,
of
that “the defendant
tion
(Tex.App.
873
S.W.2d
Antonio
— San
the
was ...
intoxicated and under
influence
pet.).
no
intoxicating liquor....”
The trial court
of
hand,
appellate
the
three
On
other
state
overruling
appellant’s
did not err
motion
have upheld
courts
DWI
even
convictions
quash
to
the indictment.
though
the indictment did not
State
which definition of intoxication the
assuming
the
Even
that
trial
Gaudin v.
prove.
In
703
indictment,
by refusing
quash the
erred
to
S.W.2d
791
did
the
this error
not violate
substantial
— Waco
ref’d),
“specifying
the court held that
rights
of the
and amounts to
the
does
how
defendant became intoxicated
nothing more
Tex.
than harmless error.
not concern the manner
the of
(Vernon
art. 21.19
Code Crim.Proc.Ann.
driving
fense of
intoxicated was com
1977).
appellant’s
point
er
The
second
of
Rather,
specification
mitted.
such
would ror is overruled.
only
type
inform
defendant
the
the
about
third,
fourth,
In his
and fifth
present
of evidence the State intended to
at
error,
appellant contends that
points of
the
trial.” The decision of two
courts
other
by including in the
court erred
the trial
McGinty
reasoning
the
Gaudin.
echoed
charge,
punishment phase
at
of
jury
the
(Tex.App
Q: your knowledge, To or kins’ statement did harm the isn’t it that a test was administered The sixth of error is over- breath to Mr. Gowin more than one time? ruled.
A: Do what now? Judgment is affirmed. Q: Isn’t it true that the breath test was
administered to Mr. Gowin more than
SUMMERS,
Justice, concurring.
Chief
one time?
agree
majority
I
of the court in
IA: understand he’s had several DWI’s.
conviction,
affirming
judgment
imagine
I
he has had it—
reasoning.
I
upon different
adhere
based
point, appellant’s
objected
At that
counsel
previous holding
Hogue
this court
being nonresponsive
to the answer as
(Tex.App. Tyler,
v.
S.W.2d 585
—
argued
prejudicial
that the
was
statement
1987,
ref’d),
held that an
pet.
wherein we
judge
in nature. The trial
sustained
indictment is defective
it contains an
objection
jury
and instructed the
to dis-
allegation
com
of an act
omission which
regard
to not
that answer and
consider
prises
statutorily
more than one
defined
any purpose in
trial. Appellant
committing
means
the offense and fails
moved for a mistrial which was overruled
of the definitions
relied
later
by the trial court. Jenkins
testified
upon. Accord, Russell
710 S.W.
presence
that he
outside
2d
question
confused
the counsel’s
— Austin
was
ref’d);
(Tex.
Ray v.
I affirm the of the trial
court. KAMEL, Appellant,
Barbara J. KAMEL, Appellee.
Jeffrey M.
No. 12-87-0103-CV. Texas,
Court of
Tyler.
Aug. 31, 1988.
Rehearing Denied 1988. Nov. *6 Norwood, Tyler,
Jack