751 S.W.2d 268 | Tex. App. | 1988
AFFIRMED ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
Our prior opinion is corrected by withdrawal and substituting the following in its place. TEX.R.APP.P. 101.
This is an appeal from a conviction for driving while intoxicated. The defendant was found guilty by a jury, and his punishment was assessed at 30 days’ confinement, suspended for two years, and a fine of $500.00.
In his fifth point of error the defendant alleges that the trial court erred in failing to grant his motion to quash the information. The motion alleged that the information and complaint failed to allege the means by which the State contended that the defendant committed the offense, i.e., whether by showing a blood/alcohol level of .10 percent or greater or by showing that the defendant did not possess the normal use of his mental and physical faculties.
The complaint and information merely alleged that the defendant was intoxicated by reason of the introduction of alcohol into his body.
The writer of this opinion previously overruled such a contention in Brown v. State, 717 S.W.2d 763 (Tex.App.—San Antonio 1986, no pet.). I persist in believing that that was a correct statement of the law. However, a more recent opinion of this court, Solis v. State, 742 S.W.2d 873 (Tex.App.—San Antonio 1987, no pet.) en banc, one justice dissenting, overruled Brown. Solis is now the controlling authority and supports the position of the defendant. I bow to the collective wisdom of my colleagues and find that the trial judge should have granted the motion to quash.
In such a situation under the authority of Opdahl v. State, 705 S.W.2d 697, 699 (Tex.Crim.App.1986) the judgment of the trial court should be affirmed.