Adriane Elaine OTTO, Appellant, v. The STATE of Texas.
No. PD-1397-04.
Court of Criminal Appeals of Texas.
Sept. 28, 2005.
Because the TAA is preempted by the FAA in this case, the signature of Marjorie‘s counsel was not a prerequisite to enforcement of the arbitration agreement. Accordingly, we conditionally grant the writ of mandamus and direct the trial court to order that all claims proceed to arbitration under the FAA. The clerk is instructed to issue the writ only if the trial court fails to do so.
ON MOTION FOR REHEARING OF CAUSE
SUPPLEMENTAL PER CURIAM.
On rehearing, the real party raised for the first time that the Federal Arbitration Act is “reverse preempted” by the McCarran-Ferguson Act, citing for authority the Houston court of appeals decision in In re Kepka. See
Donald R. “Tex” Tonroy, Houston, for Appellant.
Kelly Ann Smith, Asst. D.A., Houston, Matthew Paul, State‘s Attorney, Austin, for State.
OPINION
PER CURIAM.
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
MEYERS, J., not participating.
COCHRAN, J., filed a concurring opinion.
COCHRAN, J., concurring.
I join in the majority‘s decision to remand this case to the court of appeals in light of Gray v. State, 152 S.W.3d 125 (Tex.Crim.App.2004). I hasten to add, however, that the charge in this case does not suffer from the same defects as those in Gray. In that case (1) the application paragraph of the charge permitted conviction for DWI if the jury found that the defendant was intoxicated “by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical,” although the defendant was charged only with intoxication by means of alcohol; and (2) the jury charge included a non-statutory jury instruction based upon an appellate presumption concerning the “synergistic effect” of certain drugs taken in combination with alcohol. Gray, 152 S.W.3d at 127.
In this case, however, the complained-of jury instruction is a plain-vanilla statutory instruction on concurrent causation as set out in
MEYERS, J., not participating.