*1 separation-of-powers tional violation
doctrine. These are matters that are best Legislature
left to the Safety and to Na- Casualty Corp.
tional Concurring Opinion
Page governments may local
crease their upon non-profit reliance Pre-
trial programs. majority Services notes,
аptly bonding “Bail is a busi- Indeed is. To the extent that
ness[.]”1
the interests of the bail bond business and justice system needs the criminal track,
are not on the same local and state
governments are free appropriate to make
adjustments. Courts do not decide the laws, they
wisdom of such decide
their constitutionality. join therefore the majority opinion. OTTO, Appellant,
Adriane Elaine
v.
The STATE of Texas.
No. PD-1311-06.
Court of Appeals Criminal of Texas.
Feb. 2008.
Rehearing April Denied Majority Op. at 164.
rently drug,” an is unknown substan- jury instruction, tively different from a that defines as the “introduc- intoxication of a of alcohol and tion combination drug.” decide that there unknown We significant or legally no substantive differ- charges ence and that between these two jury charge in the concurrent-causation on the improperly expanded this case alle- gations the indictment. alleged appellant
The indictment having intoxicated “not the normal (sic) physical use of his mental and facul- introduction ties the reason of the (sic) into his body.” state’s support allegation of this evidence take a appellant’s cluded refusal to breath- to the alyzer test her statement ar- a lot resting officers she had had trial, Appellant drink. howev- testified er, only that she had a small consumed (two wine) glasses amount of alcohol After during dinner a restaurant. din- ner, bar” she “sports she went where only soda evening drinking spent a male friend. testified Appellant must some put male friend knowledge. drug into her soda without it was suggest She seemed alcohol, this unknown (“Tex”) Klein, TX, Tonroy, Donald R. that caused her intoxicated. Appellant. for in the indict- Tracking allegations Keating, Atty., Hous- Kevin Asst. Dist. ment, application paragraph Horn, ton, Atty., L. State’s Jeffrey Van jury to сonvict jury charge authorized the Austin, Appellee. for if it that she was intoxicat- appellant introduction of “by ed the reason of the OPINION Pursuant body.” into his HERVEY, J., opinion delivered 6.04(a), the state Section Pen.Code, Tex. PRICE, MEYERS, the Court which received, appellant’s requested and over KEASLER, JJ., JOHNSON, joined. jury in- objection, a concurrent-causation stating: struction felony A jury convicted pre- person criminally responsible A The issue driving while intoxicated. occurred a concur- the result would not have in this case sented is whether instruction, either alone or operating that de- for his rent-causation cause, unless concurrently with another the “introduction of fines clearly suffi- concur- concurrent alone or cause was operating either cient to overruling objection the result and the con- appellant’s to the instruction, duct of the defendant insufficient. the trial apparently court concluded that this in- Therefore, find from the evi- struction would not authorize the beyond dence a reasonable doubt that *3 find intoxication based on a combination of the intoxication of Adriane Elaine Otto drugs. alcohol and would not have occurred but for the defendant’s as in charged says No. What this [THE COURT]: indictment, operating either alone or that unless the concurrent cause was concurrently cause, with another unless clearly produce sufficient to the result clearly the concurrent cause was suffi- and the conduct of the are defendant produce cient to the result and the con- insufficient, clearly the concurrent insufficient, duct of the clearly defendant cause to me the allegation. you find criminally will the defendant drug, To the it [DEFENSE]: whatever responsible. you beyond Unless so find was. doubt, a reasonable or if you have a The [THE COURT]: whatever thereof,
reasonable doubt you will find was, drug and unless that clear- was criminally defendant not responsible ly the result and say by your and Guilty.”1 verdict “Not the conduct of the defendant in- Appellant objected instruction, to this sufficient, the conduct of the defendant “because it would let the State argue that being beverages. alcoholic two drugs combination of could have caused wine, yes, [DEFENSE]: sir. they pled when alcohol I telling [THE Then am them COURT]: only.” Appellant explained further you find the defendant crimi- will in evidence this case showed that in- nally responsible. toxication was caused “either or Yes, sir. [DEFENSE]: else, it something was but it wasn’t find, you [THE Unless so COURT]: combination.” words, you other if find that the [DEFENSE]: What the evidence this the cause was and the alcohol is, case is that something made [appel- not, you acquit then her say will intoxicated. It lant] was either alcohol by your guilty. verdict not else, it something but it wasn’t this, After there further discussion They combination. didn’t plead or about
say anything about the making struction, during apparent- the state [appellant] more susceptible to the in- ly position tоok the that this instruction toxication of which is what would authorize the intoxi- find read that as saying, and this is different. “[a]leohol, cation operating based either This seems intervening to me like an concurrently alone or with another cause.” cause rather than a combination of something between the alcohol says essentially and the Causation [STATE]: drugs. case, that if alcohol or alco- application paragraph drug. application para- of this instruc- This tion, therefore, instructed the to convict graph further instructed the con- appellant it found that her intoxication was ingestion vict if it found that her ("as ingestion of alcohol "clearly alcohol was insufficient” to cause hеr indictment”), charged in the operating either intoxication. ingestion alone or with her paragraph else—let me read this it’s this talks something
hoi get to make sure I here. heard straight you probably about—and Alcohol, operating you either alone or wondering read it Judge were currently with another unless read going on—and I’ll from what was other cause is insufficient. No- “Therefore, paragraph, second say does causation that alcohol where a reason- beyond from the evidence find predominant. has to be the It doesn’t that the intoxication Adri- able doubt say majority. just it has to be the has occurred but ane Otto would say alcohol and go- for the defendant’s conduct”—that’s else, lоng of—part as as it is ing driving to be her the vehicle while intoxicated, indict-
* * n *4 ment. if the saying drug You’re [STATE]: was charged in indictment that We have clearly the result intoxicated the introduction she was clearly and the alcohol insufficient? was into her that is body. So her To cause result. [THE COURT]: charged in the indictment. conduct as guilty. Then it’s not [STATE]: Driving the vehicle intoxicated while The be verdict should [THE COURT]: reason of introduction alco- guilty. body. Operating alone hol into her or The Exactly. law doesn’t [STATE]: concurrently cause. with another much specify to how the conduct that this is in paragraph The reason has to along with the concurrent conduct testimony. here is because of Ms. Otto’s be, percent. It whether it’s testimony, you And if listen her she say pre- has to be doesn’t driving and you told that she was she just says it dominant. It has be anything. only remember doesn’t cause, clearly unless it is insufficient. If might think that she wasn’t reason she insufficient, lose, it is then we but have intoxicated is because she didn’t say percent it doesn’t it to be 30 has night, that the reason she accident but see percent percent. you or 51 Do in the condition was was she was there, saying Judge? I’m It what of some substance because unknown set it has to doesn’t out that body. in her that was just it is predominant says cause. if clearly insufficient. if it. Now, it’s in here need This you in here need it. paragraph you This During argument, its closing jury no to her paragraph lends credence tes- argued state that the concurrent-causation dоes not tell permitted timony paragraph to convict you you if it that she intoxicat- have to believe what she was that “by saying, reason of the introduction of alcohol but in here case ed was it’s you body” that “[o]perating into her either alone there’s an issue that arises might another cause.” think that there was “the argued only way” only state further that involved alcohol. else besides could that if acquit appellant here, was need it’s in why That’s we it believed that be clear about that. It does lend there, intoxication. up she said be- credence what later, argue I I don’t believe thing Another want to talk [STATE]: it, you but it’s need it. charge, about 3 of the here you page is on word And paragraph you Now, clause, what this also tells if I read this this extra is that in order to guilty, find her not that has been included in the you to find have that the charge, you conduct of the it sounds like if find defendant, driving which is the any way while that the alcohol re- intoxicated sponsible of the introduction intoxication, for her then insufficient. And guilty. she you got That have find by clearly insufficient means that virtually are the sole played you no cause. That if believe you reason for her intoxication before her, that all night— she had that guilty. can find her
Now,
case,
if that’s the
I don’t believe
they
proved beyond
a reasonable
doubt that she was
intoxicated
you
her,
That if
believe
that all she had
introduction of alcohol into her system.
that night was two classes
of winе
And I’m
exactly
not real sure
what this
you
believe that
particular part
charge says,
insufficient
because
believed her
proceed
let me
my original
closing
story, that she
slipped
had been
a mic-
argument.
key
night,
only way
is the
(Emphasis supplied).
*5
you can find her
guilty.
not
The court of
initially decided
(Emphasis supplied).
the concurrent-causation instruction
did
improperly
expand
allega
on the
expressed
defense also
a belief that
in
State,
tions
the indictment. See Otto v.
the concurrent-causation
per-
instruction
238,
141
(Tex.App.-San
S.W.3d
239-41
An
mitted the
if the
2004).
review,
tonio
On discretionary
we
believed that
“alcohol was in
way
remanded the ease to the court of appeal
responsible for her intoxication.”
light
reconsider its decision in
of our
Well,
gentle-
[DEFENSE]:
ladies and
State,
decision in Gray v.
lishes by charged in the indictment when the allegations being tible intoxicated Here, intoxication in terms of charge defines intoxicant —alcohol. by charge “the intoxicated whether defendant was and instructions authorized drugs and alco if it guilty a combination of unknown to find Otto (1) A Gray, hol.” See 152 130.3 intoxicated reason of the introduc- S.W.3d cases, not, of types does in these into her charge body, tion allegations intoxicant, on in expand the intro- improperly charge drugs concurrently indictment when the defines duction unknown “the de A theory. terms alcohol—a combination whether jury’s intoxicated еi intoxicated finding [was] fendant Otto was or in combination with a ther alone of introduction susceptible drugs concurrently that made him more to alco with alcohol does not charge Gray-that See id.4 This latter is com hol.” mean—like in Sutton and “synergistic to as a effect” monly referred found Otto intoxicated charge. (stating See 133 “susceptibility” Gray, Gray, alone. 152 S.W.3d at Sutton, in Gray Our decision can both this case S.W.3d “[i]n of the statement that approving charge permitted read if the conviction liquor drugs “combination more suscep- made the defendant alcohol”). susceptible would make an individual more to the like in Rod- tible Much is in liquor to the influence of effect distinguish- and Sutton are riguez, Gray equivalent by liquor to intoxication alone.” expands jury charge able that the State, (quoting id. Heard v. charging in the allegations set forth (Tex.Cr.App.1984)). (“The S.W.2d See id. instrument. *6 Rodriguez put did not forth an ‘addition- appeals The that court of decided jury. the susceptibility theory,’ al im the concurrent-causation instruction expanded on the ‘improperly therefore expanded allegations properly the allegations forth in the informa- set the this instruction au indictment because tion....’”). a a thorized conviction under “combina Otto, 211 S.W.3d 362-63. theory. tion” The court decid of ed: also that the believe concurrent- We instruction, con- especially causation when jury charge Gray Sutton and
Unlike
closing jury argu-
sidered
the state’s
susceрtibility theory.
not include a
did
Sutton,
jury charge
charge
and
at the
Gray
position
and
ments
its
ference,
ingestion
appellant’s
of
conviction if the
authorized
conviction
permitted
J.,
(Cochran,
dissenting) (referring
“by
a
of the introduction of
and at 136
ed
justice system
abuse
as
to this
of
criminal
and alcohol
combination of unknown
hair-splitting”).
‘‘Dickensian
body”).
his
into
State,
Rodriguez
also
v.
18 S.W.3d
See
State,
also
v.
899 S.W.2d
See
Sutton
(charge
(Tex.Cr.App.2000)
improperly
229-32
op.) (charge
(plurality
(Tex.Cr.App.1995)
expands allegations
charging
instrument
allegations
expand
improperly
does
alone,
alleging
intoxication
alcohol
charging
when it defines intoxi-
instrument
charge
as
defines intoxication
“introduc-
"alcohol, either
сation as introduction of
drug,
a
or a combination
tion
drug
or in
with a
that
alone
combination
body”
both of those
into
susceptible to
more
ma[k]e[s] [the defendant]
application paragraph
convic-
authorizes
alcohol”).
jury
if
finds that defendant
intoxicat-
tion
under a
theory.
Gray,
allegations
“combination”
on the
in the indictment. See
id.
Otto,
130;
241-45
dissenting).5 While
dissenting
claims that
opinion
prop-
concurrent-causation instruction was
responsive
this instruction
to the de
er
a “but-for” limita-
because it contains
fensive theory
appellant’s
intoxication
tion, meaning
could not
solely by
was caused
an
unknown
it
it
convicted
unless
found that she
still authorized
convict
it
would not have become intoxicatеd “but-
rejected
theory
this
still found
for”
ingestion
of alcohol. See Dissent-
appellant’s
intoxication was caused
a
ing op.
dissenting opinion
176.7
combination of
alcohol
the unknown
further claims that the “but-for” limitation
drug.6 Nothing any
this instruction or
in the concurrent-causation instruction dis-
other part
authorized the
tinguishes this case from our “combina-
appellant upon
a finding
convict
tion” instruction
such
Rodriguez,
cases
that a combination
and the un
because a “combination” instruction does
drug
known
made appellant
suscep
more
not contain a “but-for” limitation. See Dis-
tible to the
required by
alcohol as
Gray,
(“combination”
senting op. at 176
instruc-
We,
therefore,
S.W.3d at 130.
decide
tion is improper beсause it does not
limitation).8
improperly expanded
instruction
clude
“but-for”
5. The
8. According
dissenting
state seems to concede
opinion,
as much in its
argues:
brief where it
"combination”
does not
contain a
is, therefore, improp
"but-for” limitation and
While it is true that the instruction author-
er,
improperly
[appellant’s]
because a
find
ized
could
conviction on a combina-
(when
theory,
tion
combination of
did so
alcohol was a
State
alcohol)
"but for”
alleged
drug
intoxication. More-
over,
the instruction forbade the
though
intoxication even
the alcohol was
[appellant]
if the combination of
by itself to cause
insufficient
intoxi
Rohypnol
or another
and alcohol was
oр.
Dissenting
cation. See
at 176. It is not
alcohol, standing
such that
effect
apparent
jury can
to us that a
make such a
alone, was insufficient to cause her intoxi-
finding
portion
under a "combination”
of an
cation.
instruction that
defines
as the
(Emphasis supplied).
alcohol, drug,
"introduction of
or a combi
*7
substances,
nation of both of those
into the
agree
6. We
with the
state
the concurrent
body.”
Rodriguez,
See
This, however, point. cation as the “introduction is beside in- though Even of drug, or combination of both those case contains a “but-for” struction this body”).12 into the not a con- limitation and would authorize judgment of the court of is if jury found that wine viction affirmed. clearly insufficient appellant drank was intoxication, this concurrent-cau- causе her instruction also authorized sation J., WOMACK, concurred. if intoxi- appellant’s
to convict it found ingestion by appellant’s caused cation was COCHRAN, J., dissenting filed a or con- either alone “operating of J., HOLCOMB, joined. opinion This, currently with another cause.”9 considerations, is what “but-for” KELLER, P.J., participating. this the “combination” brings case within Rodriguez.10 COCHRAN, J., dissenting which
instruction
cases
such as
recognize
dissenting opinion
J.,
seems
HOLCOMB,
joined.
that,
the “con-
much when it asserts
as
as
think that
respectfully
dissent.
I
ap-
instruction was
current causation
correctly
statutory
trial court
included
case,” the
could have
plied to this
State
on concurrent causation in
instruction
plus something else—
proved that “alcohol
apprоpri-
That instruction
this DWI case.
together11
anything else-working
caused
the defen-
ately deals
cases which
with
[appellant’s] intoxication.” Dissenting
intoxicated
being
charged
dant
with
175-76; compare Rodriguez,
op.
alcohol,
substance,
as
de-
one
such
im-
(jury
S.W.3d
229-32
instruction
that he
by asserting
fends himself
and im-
“combination” instruction
proper
other than
intoxicated on some substance
expands
allegation
indictment
properly
pled
one
the State.
intoxi-
by defining
Roget’s Desk Thesau-
or "combination.” See
part,
the concurrent-causation
relevant
“put
("bring together” and
at 98
in this case instructed the
rus
"combine”).
together”
synonymous
convict
it found that "the intoxication
are
[appellant]
but for
not have оccurred
would
[appellant’s]
in the in-
appel-
given
effect to
12.The
could have
dictment,
concur-
operating either alone or
paragraph
application
lant's
in the
defense
applied
rently with
cause[J”
another
As
authorizing
part
case,
jury to
instructed the
convict
this
this
that she
appellant
if it found
not have
her intoxication would
"by
the introduction
intoxicated
"alcohol,
occurred but for the introduction
(sic) body.” A concurrent-
of alcohol into his
operating either alone
necessary
was not even
causation instruction
drug.”
1. There is
another
See also Footnote
else,
present
defense that
no substantive difference between
appellant's
intoxi-
and not the
*8
Rodriguez that de-
one in
struction and the
addition,
being
with DWI not
cation.
as the introduction
fined intoxication
offense, a concurrent-causa-
result-oriented
drug]."
of both
and a
[alcohol
"combination
appropri-
arguably
even
is not
tion instruction
person's
to the
of what causes
ate
issue
intoxication,
The
conference and
10.
record of
explained in footnote
closing
arguments
reflects
Dissenting op.
also
that
dissenting opinion. See
therefore,
parties
It,
how
viewed the concurrent-
appear
this is
would further
175 n. 13.
causation
as well.
expanded the alle-
improperly
that
State
requested
gations in
the indictment
was not even
togeth-
an instruction that
phrase "working
and received
We note
that
appropriate
the case.
arguably synonymous with “combine”
for
er” is
a man named Phil
way
in
decision
home and met
appeals,
The court of
its first
case,
drinking
right
in
reached the
result for
testified that he was
Jones. She
Unfortunately,
right
beer,
going
reason.1
we
After
but she ordered a Coke.
home,
by granting
fused that court
the defen-
restroom,
go
decided to
to the
she
discretionary
and
petition
dant’s
for
review
out of
but as she and Phil Jones walked
in
the case for reconsideration
remanding
door,
suddenly
“feeling
started
she
State,
light
Gray
v.
152 S.W.3d
thought
that she “had eaten
sick” and
It was
their
(Tex.Crim.App.2004).2
Phil Jones
bad at dinner.”
opinion
the court of
second
get
helped
her to the
walked
van
astray.3
should reaffirm the rea-
went
We
side
got
passenger
into it. Then he
opinion.
soning and result
their first
at her
kissing
tugging
and started
her and
him,
yelled and cursed at
clothes. She
pa-
The evidence at trial
that a
showed
She said that she
got
he
out of
van.
appellant’s
stopped
trol officer saw
van
basically
home and “that’s
started to drive
at 1:45 a.m. on a
the side of the road
thing
the last
I remember.” She admitted
January morning.
engine
The
run-
was
officers that she
ning,
headlights
Appel-
and the
on.
that she
told the
were
never
wheel,
asleep
lant
behind the
was
driver’s
and stated that she did
had been assaulted
slouched back with her shirt off.
day
the next
that she
not realize until
officer smelled alcohol and tried to shake
may
drugged
Phil
Jones
have
believed
awake, but he
unsuccessful.
appellant
her,
Rohypnol
possible
as a
suggesting
arrived,
Another officer
two were
anything
drug, although she did
know
appellant
then able to
a “ster-
awaken
drug.
about that
startled,
num-rub.” She was
and she
Because
claimed
some-
yelled
them.
and cursed at
The officers
thing other than alcohol had caused her
put
get
asked her to
her shirt on and to
intoxication,
requested
that the
State
“very unsteady
out of the van. She was
jury on concurrent
judge
trial
instruct the
performed
and confused.” The officer
6.04(a).4
causation under Section
He did
HGN test
indicated that she
following
instruction:
so with
perform any
intoxicated. She refused to
responsiblе if
person
criminally
A
sobriety
field
tests or to submit a breath
occurred but
the result would
sample. Her breath smelled of
operating
for
either alone
his
and she told the officers that she
a lot
“had
cause,
another
unless
offi-
evening.
to drink” earlier
concurrent cause was
suffi-
cers arrested her and
her with
the con-
cient to
the result and
felony DWI.
duct of the actor
insufficient.
Appellant
testified that she had two
from the
Therefore
find
evi-
glasses of Merlot with dinner. She said
stopped
sports
beyond
at a
on her
dence
a reasonable doubt
she
bar
State,
6.04(a).
pro-
§
(Tex.App.-San
That statute
1. Otto v.
Her
would
the conduct of the
duce the result and
no concurrent-causation instruction
clearly
If the addi-
actor
insufficient.”
given
case unless
should ever
cause,
than the defendant’s
tional
other
because it
pled in the indictment
itself,
sufficient,
always
jury
to convict the
“permit
would
the defendant’s
theory
alleged
in the
the result and
defendant on a
5. Otto,
cient
her intoxication and
at 239-40. The court
141 S.W.3d
alone,
cause,
explained
instruction did not
sufficient
concurrent
conviction,
means of
authorize an alternative
to have caused it.
option
and it did not offer
Id.
alcohol alone
choose between
by drugs
In
and alcohol.
or intoxication
(Tex.Crim.App.1988)
6. 758 S.W.2d
stead,
added a clarification
the instruction
(rejecting
Section
contention that
defendant’s
allowing
regarding
culpability,
Otto's
6.04(a)
alleged in the indictment as a
must be
only if
responsible for her actions
to find her
rely upon
theory
may
at trial
that the State
not have
intoxication "would
the resultant
charge).
and in the
conduct," whether tak
occurred but for [her]
conjunction
another
or in
en alone
(Tex.Crim.App.1986).
176 intoxi- her the defendant’s hoi the cause of intoxication arettes caused sole cation, something any- clearly the plus though or even wine else— thing working together caused intoxi- to cause insufficient itself else— intoxication. But the ef- “synergistic cation.15 The so-called cocaine, Rohypnol, cough re- “susceptibility” fect” or instruction else— medicine, M her intoxicated & Ms—made there quires “but causation because for” she drank was and the wine liquor “the combination of and intoxication, then insufficient to cause her which make an more would individual acquit. original the opinion, it must In its liquor susceptible to influence of the appeals correctly set out the issue: court equivalent is in intoxication effect present, If a is there concurrent cause ef- liquor “synergistic alone.”16 These possible ways in this “but are two fect” instructions “susceptibility” (1) be requirement may for” satisfied: limitation, implicit contain an “but for” may suffi- the defendant’s conduct find that de- require cient, by itself, result to have nоt have intoxicat- fendant would become cause; notwithstanding any concurrent ingestion of alcohol. ed for” “but and a or the defendant’s conduct merely The other substances together be suffi- may concurrent cause degree or increasing effect of level spite cient to the result. In have caused sum, In by alcohol. intoxication caused jury may of these a possibilities, im- straight a “combination” instruction if the a concurrent defendant in the allegations properly expands pro- alone is to alco- charging from alcohol instrument duce the result defendant’s hol other ev- and whatever substance duct alone insufficient.14 is concurrent-causation, shows;17 a idence in- The reason that a concurrent-cause effect, in- synergistic susceptibility or 6.04(a) proper, struction under Section struction not. does a straight “combination” instruction while instruction, itas present submitted incorrect, “combi- legally is because a statute, is general words any does not include nation” instruction the instruc- improvement upon also a vast pure “but for” limitation. Under Gray Sutton because it tion in either instruction, a could “combination” for pluck does not out certain evidence the combination of improperly find on (when and is not a comment special mention al- glass half a of wine State alcohol) simply, eig- weight any evidence.18 leged and fifteen marihuana Otto, legation when it (citing аt 240 Marvis v. 14. 141 S.W.3d State, 878, (Tex.Crim.App. 36 881 as the "introduction S.W.3d defined intoxication Robbins, 351; 2001); 717 S.W.2d Medina of both of or a combination State, 83, (Tex.App.-Hous 86 v. 962 S.W.2d body” and author- those into ref'd)). 1997, pet. ton [1st Dist.] combination). any ized for such conviction State, 228, 229- Rodriguez 15. See v. 18 S.W.3d 794, State, 799 v. 122 S.W.3d 18. See Brown (Tex.Crim.App.2000). 32 (“Texas are for (Tex.Crim.App.2003) courts State, 125, pre Gray instructing 128 152 S.W.3d v. bidden from State, v. (Tex.Crim.App.2004); evidentiary sufficiency Sutton 899 sumption rule 682, (pl (Tex.Crim.App.1995) basis.”); S.W.2d statutory v. Atkins does not have urali ty op.). State, (Tex.App.-Aus S.W.2d 765-68 Atkins, ref'd). the court of pet. tin Rodriguez, (jury 18 S.W.3d 229-32 following that the held expanded al- improperly indictment struction clearly, explained to the the con- cept of concurrent causation in its statuto-
ry terms. It did not even mention the *12 alcohol, Rohypnol, other sub-
word “plain-vanilla”
stance. instruc- Jury
tion.19 instructions that are based specific language of a statute do not the weight
constitute a comment on of the
evidence. sum, I precisely think that this is
right statutory give instruction to the defense to a is that DWI
“I right, was intoxicated all but not on the you pled
substance that in the indictment.” statutory,
It is simple, purely and does not
comment on the evidence. The advocates
then have free rein to talk about common
sense, combinations “but causation,
for” and synergistic effects. respectfully
therefore major- dissent to the
ity’s judge conclusion that the trial erred
in giving what I think is the perfect con- (a.k.a. “susceptibility”
current cause effect”)
“synergistic instruction.
Ex Parte Lawrence Edward
THOMPSON, Applicant.
No. AP-75720. Appeals
Court Criminal of Texas.
March
Rehearing
April
Denied
improper
a DWI
position
though
case was an
comment on the
he would be in the same
intoxication,
evidence:
any,
produced by
his
You
are instructed that if a Defendant al-
the use of alcohol alone and
find facts
physical
lows his
condition to deteriorate to
foregoing beyond
a reasonable doubt.
thereby
such an extent that he
makes him-
Id. at 765.
susceptible
self more
to the influence of
J.,
Otto,
(Cochran,
alcohol than he otherwise would have been
19. See