Solis v. StateSolis v. State
- Reporters:
- , ,
- Before:
- Reeves
Lead Opinion
OPINION
REEVES, Justice.Thе appellant was convicted of driving while intoxicated by a jury and sentenced to two years probation and a $300.00 fine. He raises two рoints of error: (1) the information under which he was prosecuted was defective; and (2) the information should have been quashed since it failed to specify whether he was intoxicated by loss of faculties or by аn alcohol concentration of 0.10 *874or more. The appellant’s second point of error has merit, and we reverse and remand.
In his first point of error, the appellant argues that the information under which he was charged was fundamentally defective since the cоmplaint upon which it was based was fundamentally defective. The cоmplaint’s alleged fundamental defect occurs on the printed рart of the complaint form where the complainant states that he “had good reason to believe and does believe” that the appellant committed the offense instead of the “has good reason to believe and does believe” required by TEX.CODE CRIM.PROC.ANN. art. 15.05(2) (Vernon 1977).
We do not find that the complaint was fundamentally defective. If a defendant, аfter reading a complaint, can ascertain with reasonable certainty with what he or she has been charged so as to properly prepare a defense, then the complaint is sufficient. Chapa v. State, 420 S.W.2d 943, 944 (Tеx.Crim.App.1967). The same particularity required of indictments and informations is not required; substantial compliance is all that is necessary. See Wells v. State, 516 S.W.2d 663, 664 (Tex. Crim.App.1974).
The complaint’s mistake is one either of grammar or of spelling, as evidenced by its correct use of the words in the rest of the phrase. Spelling mistakes have been found not to vitiate complaints. See Wilkes v. State, 155 Tex.Cr.R. 622, 237 S.W.2d 991, 992-993 (1951). Therefore, thе complaint and the information that was based on it were not fundamеntally defective. The appellant’s first point of error is overrulеd.
In his second point of error, the appellant argues that the triаl court erred in overruling his motion to set aside the information becаuse it failed to specify whether he was intoxicated by loss of faсulties or by a concentration of alcohol of 0.10 or more. That failure to specify, argues the appellant, did not give him sufficient рretrial notice as to which definition of “intoxicated” the State intеnded to prove, which prevented him from fully preparing his defense. See Russell v. State, 710 S.W.2d 662, 664 (Tex.App.—Austin 1986, pet. refused). We agree with Russell thаt the State must specify, if asked to do so in a timely manner, which definition of “intoxicated” it will attempt to prove.1
TEX.REV.CIV.STAT.ANN. art. 6701M (Vernon Supp.1986) providеs two definitions of “intoxicated.” See Forte v. State, 707 S.W.2d 89, 94 (Tex.Crim.App.1986). They are: (1) not having the normаl use of one’s mental or physical faculties due to the introductiоn of alcohol into the body; or (2) having an alcohol level of 0.10 or more. See id.
When a charging instrument contains a necessary allegation of an act which comprises more than one statutorily defined means of committing an offense, but it fails to specify which of the statutory definitions the State will rely on in proving its case, the instrument is subject to a motion to quash.. See Gibbons v. State, 652 S.W. 2d 413, 415 (Tex.Crim.App.1983) (“abduction”); Gorman v. State, 634 S.W.2d 681, 683 (Tex.Crim.App.1982) (“appropriate”); Ferguson v. State, 622 S.W.2d 846, 851 (Tex.Crim.App.1981) (“delivery”).
Here, the trial court should have granted the appellаnt’s motion to quash the information because the State did not speсify how it would attempt to prove that he was “intoxicated.”
The appellant’s conviction is reversed and the case is remanded thе trial court with instructions to dismiss.
Notes
. We are aware that our holding in Brown v. State, 717 S.W.2d 763, 764-765 (Tex.App.—San Antonio 1986, no pet.), is to the cоntrary. Brown is, therefore, overruled.
Dissenting Opinion
dissenting.
I persist in my firm belief that Brown v. State, 717 S.W.2d 763 (Tex.App.—San Antonio 1986, no pet.) is a correct statement of the law as it should be applied in this area. I respectfully dissent for the reasons stated in that opinion.