*1 873 nоt decide ignore Mullaney and need in of holding is still viable view
whether its v. subsequent decision in Patterson the York, 197, 2319, 53 432 U.S. 97 S.Ct. New Allen, (1977). The Resto- L.Ed.2d 281 See on Winship: In re A Comment ration of in Cases Burdens Persuasiоn Criminal of York, MICH.L. v. New 76 Patterson after (1977). REV. 30 judgment the trial court is af- The of firmed. SOLIS, Appellant, Vela
Johnnie
v. Texas, Appellee. of The STATE No. 04-86-00514-CR. Texas, Appeals Court of of Antonio. San 31, Dec. 1987. Stevens, Valdez, San A. Mark
Robert Antonio, appellant. for Barrera, Martina Rodriguez, Frеd G. Jr., Attys., Dist. Raymond Hardy, Criminal Antonio, appellee. for San OPINION
REEVES, Justice. driving convicted of appellant was
The by jury a and sentenced intoxicated while fine. and a years probation $300.00 to two (1) infor- the points of error: He raises two prosecuted was he was mation under which defective; (2) information should the and specify it failed to quashed since have been by of fac- intoxicated loss he was whethеr concentration of 0.10 by an alcohol ulties or *2 874 point The of of “intoxicated” thе State intended appellant’s
or more. second to prove, fully prevented рre which him from merit, error we reverse and re- has and State, Russell v. See paring his defense. mand. 662, (Tex.App. 710 S.W.2d 664 — Austin error, point the In his first of refused). 1986, agree Russell pet. with We appellant argues the information un that specify, must if asked that the State to do charged der which he was was fundamen manner, timely in a definition of so which tally complaint upon defective since the attempt prove.1 it “intoxicated” will to fundamentally it de which was based was TEX.REV.CIV.STAT.ANN. аrt. 6701M alleged complaint’s fective. The funda (Vernon provides Supp.1986) two defini- part printed mental on the of defect occurs State, v. “intoxicated.” See Forte of tions complainant complaint the form the where 89, (Tex.Crim.App.1986). 707 S.W.2d 94 “had good he to statеs that reason believe (1) having the They are: not normal use of appellant the com and does believe” that physical one’s mental or faculties due to “has good mitted offense of the the instead body; of the the introduction alcohol into reason and believe” re to believe does (2) having an of 0.10 or or alcohol level quired by TEX.CODE CRIM.PROC.ANN. more. id. See 15.05(2) (Vernon 1977). art. charging When a instrument contains a complaint necessary аllegation do find the was of an act which com- We not that prises statutorily defined defеndant, more than one fundamentally defective. If a offense, committing of an but it means rеading complaint, a can ascertain after statutory specify of the defi- fails tо which certainty he or reasonable with what with rely proving the on nitions State will in its propеrly has so to charged she been as case, subject a the instrument is to motion defensе, complaint prepare then the is a State, Gibbons v. quash.. 652 See to S.W. Chapa State, 420 v. sufficient. S.W.2d 413, (“abduc- (Tex.Crim.App.1983) 2d 415 943, The (Tex.Crim.App.1967). 944 same State, 681, tion”); Gorman v. 634 S.W.2d required of and pаrticularity indictments (Tex.Crim.App.1982) (“appropriate”); 683 required; is substantial informations not Statе, 846, Ferguson 851 v. 622 S.W.2d necessary. See compliance is is all that (“delivery”). (Tex.Crim.App.1981) State, 663, (Tеx. v. 664 Wells 516 S.W.2d Here, granted have trial court should the Crim.App.1974). quash the infor- appellant’s motion to the complaint’s one either of The mistake is specify the not mation becаuse State did spelling, by as its grammar or of evidenced he prove that was attempt it tо how would in of the words the rest of the correct use “intoxicated.” been found phrasе. Spelling mistakes have is reversed appellant’s The conviction v. See Wilkes complaints. to not vitiate is the trial court the case remanded and State, 622, 991, Tex.Cr.R. 237 S.W.2d 155 to dismiss. instructions with (1951). Therefore, complaint the 992-993 based on it the information that was and DIAL, Justice, dissenting. ap- fundamentally The defective. were not that Brown v. persist my firm I in belief point is overruled. pellant’s first of error State, to (Tex.App.—San 717 763 S.W.2d An error, point of the In his second 1986, pet.) correct statement no is a nio court erred appellant argues that the trial in aрplied law it be this of the as should overruling his set aside the respectfully in motion to I for the rеasons dissent area. opinion. in specify information it failed to that because stated by loss fac was intoxicated of whether he alcohol of by a of
ulties or cоncentration specify, failure ar or That to 0.10 more. him give not suffi gues appellant, did thе to definition pretrial notice as which cient 1986, contrary. pet.), no is to the holding in v. Antonio our Brown 1. We are aware that therefore, is, 763, State, (Tex.App. overruled. Brown S.W.2d 764-765 717 — San