Lead Opinion
delivered the opinion of
the Court,
The appellant rear-ended another car while driving in Austin. She was charged
We granted review of the issue, “In a driving while intoxicated case, where the evidence is legally sufficient to support a conviction on the theory that the defendant was intoxicated by ... alcohol ..., is it proper for the trial court, in its charge, to also authorize a conviction on an alternative theory that the defendant was intoxicated by ... a drug, or a combination of alcohol and a drug ..., where the evidence merely shows that medications prescribed for the defendant were found in her car ... ?” Because we find there was evidence relating to the challenged portions of the definition, we conclude the charge was proper and affirm the Court of Appeals.
The jury heard the first police officer to arrive at the scene of the collision testify that the appellant was acting unusual and that he smelled alcohol on her breath. Because he thought the appellant could be intoxicated, he summoned a member of the Austin Police Department’s DWI task force, Officer Mabe. The appellant told Mabe that she had drunk a glass of wine earlier in the evening. Mabe then administered two field sobriety tests. Based on the results of these tests, physical symptoms of intoxication, and the odor of alcohol on her breath, Mabe placed her under arrest for driving while intoxicated. After the arrest, an officer found in the car a pill bottle containing three types of pills. The officer who found the pills did not remember where in the car he found them.
Officer Mabe said that when he confronted the appellant with the pills she identified two types of pills as Soma and Darvocet, but was unable to identify the third type. She said the pills were prescribed to her but that she had not taken any of them in over a month. She offered to submit to a blood test to prove this claim, but retracted her offer when Mabe said that a blood test would also check for alcohol content. Mabe testified that Soma was a central nervous system depressant capable of causing the horizontal-gaze nys-tagmus he observed during the field sobriety tests. In its jury arguments, the State emphasized that the jury could find that the appellant was intoxicated either by pills or alcohol or both.
In the Court of Appeals, the appellant argued that the trial court erred in giving the jury a definition of “intoxicated” that included being intoxicated from drugs, because there was no evidence that the appellant was intoxicated from anything other than alcohol. The Court of Appeals concluded that, presuming the State was required to prove the type of intoxicant, there was evidence that the appellant was intoxicated by drugs.
Our DWI statute provides a definition of “intoxicated” that focuses on the state of intoxication, not on the intoxicant.
' We have previously held that when only a portion of the statutory definition is relevant to the elements of the offense, giving the whole statutory definition may be error. The defendant in Alvarado v. State was charged with causing injury to a child by putting him in a tub of hot water.
The appellant here wants us to make a similar holding as it relates to the facts of this case, namely that a trial court errs in submitting to a jury sections of a statutory definition that are not relevant to the evidence in the case. We need not decide that issue today; while evidence that the appellant was intoxicated by drugs was circumstantial and not obviously overwhelming, it is nonetheless present in the record.
Officer Mabe testified that the appellant showed signs of having consumed a central-nervous-system depressant. He said that both alcohol and Soma are central nervous system depressants. Mabe said that when he arrested the appellant, which was before the pills were found, he did so because he believed she was intoxicated by alcohol. He never said whether the discovery of the pills altered his opinion about how the appellant was intoxicated.
In short, the appellant 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 the defendant 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. We affirm the judgments of the courts below.
. Ouellette v. State, No. 03-08-00566-CR, 2010 WL 3377774, 2010 Tex.App. LEXIS 7053 (Tex.App.-Austin, August 27, 2010) (not designated for publication).
. Ouellette, 2010 WL 3377774, at *3.
. Tex. Pen.Code § 49.01(2)(A) (one may become legally intoxicated through the ingestion of "any ... substance into the body”); see Gray v. State, 152 S.W.3d 125, 136 (Tex.Cr.App.2004) (Cochran, J., dissenting) ("The law does not differentiate between the drunk driver who was intoxicated because he consumed alcohol, or injected heroin, or sniffed glue, or took prescription medicine.”)
. Villarreal v. State, 286 S.W.3d 321, 329 (Tex.Cr.App.2009).
. 704 S.W.2d 36, 37, 39 (Tex.Cr.App.1985).
. Id., at 36.
. Id., at 37.
Dissenting Opinion
dissenting.
The problem in this case boils down to one thing: evidence regarding the pill bottle should never have been entered in the first place. Because the defendant said she had not taken the medication within the last month, it was not relevant to the DWI charge. The prescription pill bottle found in Appellant’s car is no more admissible to show that she was driving while intoxicated than Alcoholics Anonymous literature found in the car would be. The defense should have filed a motion to suppress this evidence and objected to its admission at trial. Unfortunately, the defense didn’t object until the jury charge conference.
To compound the problem, the court of appeals analyzed the improper jury charge under a sufficiency of the evidence standard of review. The court pays lip service to Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1985), but then goes on to review the factual and legal sufficiency of the evidence. The court of appeals noted that Ouellette did not object to the admission of any evidence relating to the drugs and said, “Under a legal sufficiency standard of review, we consider all evidence properly admitted at trial, including evidence here that prescription drugs were present in Ouellette’s vehicle and that Ouellette admitted that the medications were hers.” Ouellette v. State, No. 03-08-00566-CR, 2010 WL 3377774, at *3, 2010 Tex.App. LEXIS 7053, at *8 (Tex.App.-Austin August 27, 2010) (mem. op., not designated for publication). That may be true if this was a legal sufficiency case. But it’s not, and legal sufficiency is not the standard used to determine if a jury charge is correct. The court of appeals concludes that “factually sufficient evidence supports Ouellette’s conviction of driving while intoxicated by reason of her consumption of alcohol.” Id. at *3, 2010 Tex.App. LEXIS 7053 at *10. Again, this may be true, but we don’t use a factual sufficiency standard of review to say that a charge was properly submitted to the jury either. I respectfully dissent to the majority’s failure to even acknowledge the court of appeals’s use of the wrong standard. I would remand this case to the court of appeals for a proper analysis of the jury charge error.