*1 jurisdiction personal judgment lacks —the it no final. challenged,
is void less otherwise, judgment
If it were a void could on a mo any simply
be set aside at time aside, procedure
tion to vacate or set disapproved. Mid expressly
McEwen See (Tex. Murff,
dleton v.
1985). Judgment The Default entered judgment;
this case is a final therefore the attack are
defendants’ avenues of direct trial plenary
limited.10 Because the
power expired before Wiedner Culli- aside, filed their motion to set the trial
gan jurisdiction grant
court had no the mo
tion.
Conclusion setting
The trial court’s order aside conditionally judgment
default is void. We
grant expect the writ of mandamus and
that the trial court vacate its Decem- will twenty days of
ber 2003 order within If opinion.
our the trial court fails to All
comply, we will issue the writ. other requested by is denied.
relief relator OTTO, Appellant,
Adriane Elaine Texas, Appellee. STATE
No. 04-02-00521-CR. Texas, Appeals
Court Antonio.
San 23, 2004.
June
peal by
appeal],
[now
court
writ of error
restricted
10. "Direct attacks in the trial
include
granting
trial and a
judg-
of motion for new
appeal
and an
... from a bill of review
Glunz,
attacks in the Court of
bill of review. Direct
result conduct, operating gether may either alone or be sufficient to have caused his cause, unless concurrently with another result. Marvis v. Robbins, (Tex.Crim.App.2001);
the concurrent cause was suffi- *3 and the con- produce spite possi cient to the result In of these 717 S.W.2d 351. clearly of defendant insufficient. bilities, may duct not a defendant a convict clearly cause alone is Therefore, the concurrent from the evidence you find produce to the result and in- sufficient beyond a reasonable doubt clearly conduct alone is insuffi would not defendant’s toxication of the defendant Robbins, 351; 717 Medi for the defendant’s cient. S.W.2d have occurred but State, 83, conduct, (TexApp.- na v. 962 S.W.2d 86 d). 1997, pet. ref concurrently Dist.] Houston operating [1st either alone or cause, another unless the concur- with argues that the concur- appeal, On clearly pro- sufficient to rent cause was misleading is rent cause instruction conduct of the duce the result rest of the jury and in conflict with the insufficient, clearly you find defendant her permits the instruction because criminally responsible. the defendant not theory to be convicted on a a beyond Unless so find reasonable indictment, namely theory on the doubt, or if have a reasonable doubt by a combina- her intoxication was caused thereof, you find the defendant not will brief, In drugs tion of and alcohol. ... criminally responsible Texas Court of Criminal Otto relies on the Code, case, sup- the Texas Penal an ac- Appeals Rodriguez Under v. State (Tex. criminally responsi- cused can not be held 228 port argument. however, reliance, the intoxication ble for an offense unless Her is Crim.App.2000). for the ac- would not have occurred but misplaced. 6.04(a)
cused’s actions. Section states: Rodriguez, driving a while intoxicated criminally responsible if the person is case, that he had the defendant testified for result would not have occurred but drinking, but that he had been not been conduct, either alone or operating his had made him taking flu medication which cause, concurrently with another unless drowsy. charge, at 229. The submit- Id. clearly suffi- the concurrent cause was objection, defined “in- Rodriguez’s ted over produce the result and the con- cient to of the normal use toxicated” as not of the actor insufficient. duct of “by faculties reason physical mental or 6.04(a) (Vernon § Ann. Tex. Penal Code alcohol, drug, or the introduction of 2003). body.” into the of both ... combination statute, paragraph of application a “but for” Id. The Under this Rodri- to find be authorized causal connection must be established “by if it found him intoxicated guez guilty and the re tween the defendant’s conduct State, of alcohol Id.; of the introduction 717 the reason sulting harm. Robbins or, “by the rea- body” separately, If a into his (Tex.Crim.App.1986). 351 S.W.2d combination of the introduction of a present, there are two son concurrent cause body.” alcohol into his drugs re unknown ways in which this “but for” possible court fol- appellate at 229-30. The the defen quirement may be satisfied: State, itself, 899 sufficient, holding in Sutton v. may lowed the dant’s conduct be and over- (Tex.Crim.App.1995), 682 notwithstanding result S.W.2d to have caused the Rodriguez’s every ruled first issue which affirmative instruction on claimed defense in submitting regardless the trial court had erred an issue raised the evidence guilt feeble, alternative which unimpeached, it is strong, whether alleged in the indictment. Rodriguez, 18 contradicted, if the trial court and even S.W.3d at But the Court Criminal opinion testimony is of the that the is not reversed, Appeals finding Rodriguez entitled to belief. Brown v. from the to differ Sutton (Tex.Crim.App.1997). S.W.2d
in that the latter allowed conviction may testimony The defendant’s alone be if the jury found defendant to have sufficient to a defensive re- raise been intoxicated with whether quiring charge. a drug or in combination with specifi Although Otto does made susceptible him more the alcohol. *4 refer, brief, in cally to an instruction her added). at (emphasis 231-32. The involuntary opposed on intoxication as to charge hand, Rodriguez, in on the other voluntariness, crux general one on included an element not contained argument involuntarily her is that she was by a
indictment: intoxication combination and, such, by a drugged party third drugs and alcohol. culpability. be Involun should absolved of The in present case is more tary a to intoxication is defense criminal like It in Sutton. au- did not State, culpability. 585 Torres S.W.2d conviction, thorize an alternative means of 746, (Tex.Crim.App.1979). The of and it option did not offer the to driving fense of while intoxicated does not choose intoxication between alcohol culpable include as a mental element by drugs or intoxication and alcohol. Ross, 214, parte state. Ex 522 S.W.2d Instead, a the instruction added clarifica- Therefore, (Tex.Crim.App.1975). 215-17 tion regarding culpability, Otto’s allowing involuntary the defense of intoxication is the jury responsible to find her for her driving not relevant to the offense while only actions if the resultant intoxication intoxicated. Aliff v. “would not have occurred but for (Tex.App.-El pet.). Paso no We conduct,” whether taken alone or in con- overrule Otto’s second issue. junction with another cause. The defense, mandating also a added that the judgment the trial court is af- actions, could not convict Otto her firmed. alone, clearly were insufficient to have
caused intoxication and the her concurrent Dissenting by KAREN Opinion cause, alone, was sufficient to have ANGELINI, Justice. caused it. issue, In Elaine her third Adriane Otto Because the concurrent cause instruc- in argues that the trial court erred submit- tion not in conflict with the of the was rest Otto to ting an instruction that allowed be it and because did authorize on convicted conviction on an alternate not al- agree indictment. I with Otto Because leged in the we overrule Otto’s I and because that the trial court’s believe first and third issues. harmful, I error was would sustain Otto’s issue, issue, court’s judg- In second third reverse the trial Otto’s she ment, for a failing trial court erred to and remand the cause new contends the reasons, respectfully For I submit an instruction on voluntariness to trial. these jury. A defendant is entitled to an dissent. Background him, they both tried to wake help Factual and Procedural They finally to awaken her Otto. were able 19, 2002, January Otto had dinner On rub. Otto was by performing sternum testi- a restaurant with some friends. She cursing. put her shirt confused She glasses of wine with fied she drank two her identification. The produced on and home, way stopped her she dinner. On exit the vehicle and officers asked to a man sports grill. bar and She had met sobriety Corporal to field tests. submit Phil there the week before named Jones Nys- performed him the Horizontal Gaze hoping again. to meet Sales and was fact, Otto, evening. any Otto tes- on she refused tagmus he was there test danced, and tified that talked and sobriety testing. They did observe further drinking man she although feet, was unsteady swaying on her that she was a.m., A little before 1:00 drank Coke. They and forth. also smelled alcohol back restroom, going after she decided She told the officers she on her breath. going to walk leave. Because Jones was dinner with friends and was had been to van, by the door her to her Otto waited Further, according to way home. on went to the restroom. Jones officers, a lot Otto told them she had nauseated, as if she was began feeling evening. Believing drink earlier to be sick. Otto told Jones that she going intoxicated, into they took her custo- *5 around put did not feel He his arm well. dy. Otto, According to her to walk her out. previous driving to two stipulated Otto sick, numb, feeling started even more convictions, intoxicated thus enhanc- getting into her heavy. and As she was felony charge in this case to driv- ing the van, tug to kiss her and Jones started ing while intoxicated. yelled stop, for him to her clothes. She him out of her van. got and somehow she Discussion van and left. Because she
She started the might concerned that Jones follow was appeal, Otto con- In her issue on third home, to drive to her ex- she decided submitting in the trial court erred tends Otto, According to the husband’s house. to be jury permitted instruction that Otto in her thing sitting next she remembers is in alleged on a the convicted by police officers. being van and awakened alleged that indictment. The indictment day things that It was not until the next public vehicle in a operated a motor Otto together, began and she to coming started intoxicated, “namely place while by putting drugged had believe Jones physi- mental and the normal use something in her Coke at the bar. introduc- by reason of the cal faculties the (“Jack- Derrick Jackson Officer John jury body.” The tion of alcohol into [her] son”) night performing his duties was following instruction: charge included the patrolman Jersey Village, in small as if criminally responsible the person County. in Harris At about city located occurred but for result would not have a.m., in parked van 1:40 he observed Otto’s conduct, alone or operating either his engine running the and the the street with cause, unless concurrently with another approached the vehicle lights on. He clearly was suffi- the concurrent cause in a in the driver’s seat saw Otto seated the con- result and produce cient to the with her shirt off. He position slouched clearly insufficient. of the defendant duct van, but was alcohol inside the smelled Therefore, from the evidence if find Jackson unable to wake Otto. Officer the in- Sales, doubt that officer, beyond to a reasonable Corporal called another An expert his doctor. Id. wit- toxication of Adriane Elaine Otto would scribed could enhance not have occurred but for the defen- ness testified that alcohol conduct, in the indict- drug dant’s as the defen- Klonopin, the effect of ment, concur- operating either alone or The trial taking. dant was cause, rently with another unless the jury court instructed clearly sufficient concurrent cause indulges if in the use a defendant product the result and the conduct of that he Klonopin to such extent insufficient, you the defendant thereby susceptible makes himself more criminally find the defendant re- will he other- alcohol than influence sponsible. beyond so find Unless have been and reason wise would doubt, or if a rea- reasonable have becomes intoxicated recent thereof from thereof, you sonable will find the doubt alcohol, in he would be the same use of criminally responsible defendant not his intoxication was position though say by your Guilty.” verdict “Not by the use of alcohol alone. produced argues this instruction allowed his con- (emphasis original). Upon jury guilty find her found her viction, appealed contending the defendant (1) by: intoxication was caused alcohol on a theo- authorized conviction (as indictment) consumption alleged in the ry charging not contained instru- consumption alcohol concurrent with ment. Id. The court of criminal involuntary consumption of an un- expand did not held that the court’s (which drug known was not charging in the instru- allegations on the indictment). hand, on the other ment, “allowed conviction but rather contends that the instruction did not ex- had [the defendant] found pand allegations on the been intoxicated with either required but simply to convict *6 drug in that made or combination with by if it found Otto was intoxicated alcohol.” Id. susceptible him more to the reason of the introduction of alcohol into Thus, in the (emphasis original). at 685 body. The emphasizes State also appeals court criminal found no error in of jury the instruction required acquit the charge. the court’s Otto if it found her intoxication was caused later, years court of criminal few the by something the introduction of other State, 18 appeals Rodriguez decided than alcohol. (Tex.Crim.App.2000). In Rod- S.W.3d 228 issue,
In overruling majority this the 229, the indictment riguez, 18 S.W.3d determined that the concurrent cause in- driving while alleged that defendant was in struction was not conflict with the rest by intoxicated alcohol. The defendant tes- charge of the and that it did not authorize drinking that he had not been tified a conviction on an alternate not him had taken medication which made so, in In the alleged doing the indictment. drowsy. Id. The court’s instructed majority states that the here is like jury following: the the State, the in Sutton v. 899 S.W.2d Now, be- find from the evidence (Tex.Crim.App.1995) (plurality op.). 682 yond a doubt that on or reasonable 1997, Sutton, 683, in day February, of In the defen- about the 15th S.W.2d defendant, Texas, County, the charged driving intoxi- Harris dant was with while Rodriguez, did then and guilty by with alcohol and was found Juan Flores cated intoxicated, unlawfully, while jury. He testified that he had drunk two there namely having the normal use of his taking drug pre- in not beers addition by a in the indictment-intoxication alleged physical by or faculties reason mental of Thus, drugs. alcohol into his of alcohol and the introduction combination of public in a body, operate a motor vehicle my in it was error to submit opinion, the evidence place; or if find from jury. instruction that on or beyond a reasonable doubt I also find that the trial would 1997, February, in day about the 15th of objected harmful. Because Otto error was Texas, defendant, County, Harris charge, the court needs to the trial court’s Rodriguez, did then and Juan Flores harm. Almanza v. only to find “some” intoxicated, unlawfully, while there (Tex.Crim.App. of his namely having the normal use 1985). issue, the court deciding this physical by or faculties reason mental of (2) (1) jury charge; considers: the entire a combination the introduction of of evidence, con- including the the state of drugs and alcohol into his unknown probative evi- weight tested issues public in a body, operate a motor vehicle (4) dence; argument; counsel’s the defendant place, then will find whole record. Id. at intoxicated on or guilty driving day February, about the 15th in- charge refer to of the Portions in the indictment. “in- only. The word by toxication alcohol (emphasis original). On Id. at 229-30 having “not is defined as toxication” complained appeal, the defendant physical faculties normal use of mental or submitting by trial court erred of alcohol of the introduction reason indictment, allowing con- in- charge further body.” into the finding on he was intoxicated viction based guilty to find Otto structs the in combina- he consumed alcohol because beyond a reason- find from the evidence unknown drug. Id. at 230. tion with there that she “did then and able doubt Sutton, on the court of Relying intoxicated, namely not unlawfully, while Id. The court of judgment. affirmed the normal use of mental however, distinguished appeals, criminal in- of the faculties the reason physical Sutton, Rodriguez emphasizing from body, oper- of alcohol into [her] troduction susceptibility Rodriguez, there was no ...” public place in a a motor vehicle ate jury. Id. at 232. Be- theory before the in accordance of the portion This application paragraph cause *7 charge, howev- The with the indictment. not contained charge included element er, instruction includes the causation also by intoxication a combi- in the jury which allows quoted above alcohol, the instruction drugs nation of driving while intoxicat- convict if Otto was allegations in expanded on the improperly as if Otto was alcohol as well ed with authorized a charging instrument and with a combina- driving while intoxicated alleged. on a conviction drug. of alcohol and a tion Thus, criminal re- the court of ap- court of had been versed and remanded to the that Otto There was evidence analysis. However, peals for a harm Otto testified drinking alcohol. unwittingly had been that she believed she majority, I that the believe Unlike she was the reason drugged drug and that from those distinguishable are facts here Although Otto’s testi- intoxicated. became Here, there was no in Sutton. evidence and was merely speculation mony was theo- support susceptibility argument drugged, had been evidence that she scant And, here ry. Rodriguez, like about whether argue did not the State jury to convict on allowed It does not lend about that. had be clear sufficient evidence that Otto there was there, up be- fact, to what she said credence drugged. it was the State been later, I believe argue I don’t cause when causation requested that the concurrent it, you if need it’s in here instruction, a word of con- apparently somewhat it. react to cerned about how the would And, testimony. closing argu- Otto’s Thus, the indictment though
ment, the State chose to focus on by intoxicated driving was concurrent causation instruction. The to convict allowed argued: State aby intoxicated if found she was para- —and I’ll read from the second And, drugs. alcohol and combination of “Therefore, you find from the graph, charge, entire the state considering the beyond a reasonable doubt evidence evidence, focus of the State’s and the would the intoxication of Adriane Otto harm I would find some closing argument, not have occurred but for the defen- charge. due to the error going dant’s conduct”—that’s to be her Conclusion intoxicated, as
driving the vehicle while charged in the indictment. error, harmful I would Having found judgment and re- reverse the trial We have in the indictment for a trial. mand the cause new she was intoxicated the introduction body. of alcohol into her So that is her charged in the indictment.
conduct as
Driving the vehicle while intoxicated
reason of the introduction of alcohol into body. Operating or concur-
rently with another cause. paragraph The reason that this COSTELLO, Individually and on Alicia testimony. here is because Ms. Otto’s Delia Behalf of the Estate of testimony,
And if listen to her Lozano, Appellant, driving told that she was and she anything. doesn’t remember might reason she think that she wasn’t HEALTH SANTA ROSA CHRISTUS intoxicated is because she didn’t have an CORPORATION, CARE night, accident that but the reason she Appellee.
was in the condition she was in was No. 04-03-00597-CV. because of some unknown substance body. in her Texas, Appeals Court Now, need it. This it’s here Antonio. San *8 you in here if need it. This paragraph is June paragraph lends no credence to her tes- not tell timony paragraph and this does have to believe what in case saying, it’s here that arises that
there’s issue something
might think that there was only alcohol.
else involved besides here, need to why
That’s it’s we