             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1311-06



                           ADRIANE ELAINE OTTO, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTH COURT OF APPEALS
                             HARRIS COUNTY

       HERVEY , J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON ,
and KEASLER , JJ., joined. WOMACK , J., concurred. COCHRAN , J., filed a dissenting opinion
in which HOLCOMB, J., joined. KELLER , P.J., not participating.

                                           OPINION

       A jury convicted appellant of felony driving while intoxicated. The issue presented in this

case is whether a concurrent-causation jury instruction, that defines intoxication as the “introduction

of alcohol, operating either alone or concurrently with an unknown drug,” is substantively different

from a jury instruction, that defines intoxication as the “introduction of a combination of alcohol and

an unknown drug.” We decide that there is no substantive or legally significant difference between

these two charges and that the concurrent-causation jury charge in this case improperly expanded on
                                                                                                  Otto--2

the allegations in the indictment.

        The indictment alleged that appellant was intoxicated by “not having the normal use of his

(sic) mental and physical faculties by the reason of the introduction of alcohol into his (sic) body.”

The state’s evidence in support of this allegation included appellant’s refusal to take a breathalyzer

test and her statement to the arresting officers that she had had a lot to drink. Appellant testified at

trial, however, that she had consumed only a small amount of alcohol (two glasses of wine) during

dinner at a restaurant. After dinner, she went to a “sports bar” where she spent the evening drinking

only soda with a male friend. Appellant testified that this male friend must have put some unknown

drug into her soda without her knowledge. She seemed to suggest that it was only this unknown

drug, and not any alcohol, that caused her to be intoxicated.

        Tracking the allegations in the indictment, the application paragraph of the jury charge

authorized the jury to convict appellant if it found that she was intoxicated “by the reason of the

introduction of alcohol into his (sic) body.” Pursuant to Section 6.04(a), TEX . PEN . CODE, the state

requested and received, over appellant’s objection, a concurrent-causation jury instruction stating:

                 A person is criminally responsible if the result would not have occurred but
        for his conduct, operating either alone or concurrently with another cause, unless the
        concurrent cause was clearly sufficient to produce the result and the conduct of the
        defendant clearly insufficient.
                 Therefore, if you find from the evidence beyond a reasonable doubt that the
        intoxication of Adriane Elaine Otto would not have occurred but for the defendant’s
        conduct, as charged in the indictment, operating either alone or concurrently with
        another cause, unless the concurrent cause was clearly sufficient to produce the result
        and the conduct of the defendant clearly insufficient, you will find the defendant
        criminally responsible. Unless you so find beyond a reasonable doubt, or if you have
        a reasonable doubt thereof, you will find the defendant not criminally responsible and
        say by your verdict “Not Guilty.”1


        1

        The application paragraph of this instruction, therefore, instructed the jury to convict
                                                                                                  Otto--3

        Appellant objected to this instruction, “because it would let the State argue that a

combination of drugs could have caused the intoxication when they pled alcohol only.” Appellant

further explained that the evidence in this case showed that intoxication was caused by “either

alcohol or it was something else, but it wasn’t the combination.”

        [DEFENSE]: What the evidence in this case is, is that something made [appellant]
        intoxicated. It was either alcohol or it was something else, but it wasn’t the
        combination. They didn’t plead or say anything about the drugs making [appellant]
        more susceptible to the intoxication of alcohol, which is what I read that as saying,
        and this is different. This seems to me like an intervening cause rather than a
        combination of something between the alcohol and the drugs.

        In overruling appellant’s objection to the concurrent-causation instruction, the trial court

apparently concluded that this instruction would not authorize the jury to find intoxication based on

a combination of alcohol and drugs.

        [THE COURT]: No. What this says is that unless the concurrent cause was clearly
        sufficient to produce the result and the conduct of the defendant are (sic) clearly
        insufficient, the concurrent cause to me is the allegation.

        [DEFENSE]: To the drug, whatever it was.

        [THE COURT]: The drug, whatever the drug was, and unless that was clearly
        sufficient to produce the result and the conduct of the defendant clearly insufficient,
        the conduct of the defendant being the two alcoholic beverages.

        [DEFENSE]: The wine, yes, sir.

        [THE COURT]: Then I am telling them that you will find the defendant criminally
        responsible.

        [DEFENSE]: Yes, sir.



appellant if it found that her intoxication was caused by her ingestion of alcohol (“as charged in the
indictment”), operating either alone or concurrently with her ingestion of the unknown drug. This
application paragraph further instructed the jury not to convict appellant if it found that her ingestion
of alcohol was “clearly insufficient” to cause her intoxication.
                                                                                                     Otto--4

        [THE COURT]: Unless you so find, in other words, if you find that the drug was the
        cause clearly and the alcohol was not, then you will acquit her and say by your
        verdict not guilty.

        After this, there was further discussion about the concurrent-causation jury instruction, during

which the state apparently took the position that this instruction would authorize the jury to find

intoxication based on “[a]lcohol, operating either alone or concurrently with another cause.”

        [STATE]: Causation says essentially that in this case, that if alcohol or alcohol and
        something else–let me read this to make sure I get it straight here. Alcohol, operating
        either alone or concurrently with another cause unless the other cause is clearly
        insufficient. Nowhere does causation say that alcohol has to be the predominant. It
        doesn’t say it has to be the majority. It just has to say alcohol or alcohol and
        something else, as long as it is part of –
                                                 ***
        [STATE]: You’re saying if the drug was clearly sufficient to produce the result and
        the alcohol was clearly insufficient?

        [THE COURT]: To cause the result.

        [STATE]: Then it’s not guilty.

        [THE COURT]: The verdict should be not guilty.

        [STATE]: Exactly. The law doesn’t specify as to how much the conduct along with
        the concurrent conduct has to be, whether it’s 50, 51 percent. It doesn’t say alcohol
        has to be the predominant. It just says it has to be a cause, unless it is clearly
        insufficient. If it is clearly insufficient, then we lose, but it doesn’t say it has to be
        30 percent or 50 percent or 51 percent. Do you see what I’m saying there, Judge?
        It doesn’t set out that it has to be the predominant cause. It just says if it is clearly
        insufficient.

        During its closing jury argument, the state argued that the concurrent-causation instruction

permitted the jury to convict appellant if it found that she was intoxicated “by reason of the

introduction of alcohol into her body” either “[o]perating alone or concurrently with another cause.”

The state further argued that “the only way” the jury could acquit appellant was that if it believed that

only the unknown drug caused her intoxication.
                                                                                                  Otto--5

       [STATE]: Another thing I want to talk to you about is on page 3 of the charge, and
       it’s this paragraph that talks about–and you probably heard the Judge read it when
       you were wondering what was going on–and I’ll read from the second paragraph,
       “Therefore, if you find from the evidence beyond a reasonable doubt that the
       intoxication of Adriane Otto would not have occurred but for the defendant’s
       conduct”–that’s going to be her driving the vehicle while intoxicated, as charged in
       the indictment.

       We have charged in the indictment that she was intoxicated by the introduction of
       alcohol into her body. So that is her conduct as charged in the indictment. Driving
       the vehicle while intoxicated by reason of the introduction of alcohol into her
       body. Operating alone or concurrently with another cause.

       The reason that this paragraph is in here is because of Ms. Otto’s testimony. And if
       you listen to her testimony, she told you that she was driving and she doesn’t
       remember anything. The only reason she might think that she wasn’t intoxicated is
       because she didn’t have an accident that night, but the reason she was in the
       condition she was in was because of some unknown substance that was in her body.

       Now, it’s in here if you need it. This paragraph is in here if you need it. This
       paragraph lends no credence to her testimony and this paragraph does not tell you
       that you have to believe what she was saying, but it’s in here in case there’s an
       issue that arises that you might think that there was something else involved
       besides only alcohol. That’s why it’s in here, and we need to be clear about that.
       It does not lend credence to what she said up there, because when I argue later, I
       don’t believe a word of it, but it’s here if you need it.

       And what this paragraph also tells you is that in order to find her not guilty, you have
       to find that the conduct of the defendant, which is the driving while intoxicated by
       reason of the introduction of alcohol, was clearly insufficient. And by clearly
       insufficient means that it played no cause. That if you believe her, that all she had
       that night–
                                                ***
       That if you believe her, that all she had that night was two classes (sic) of wine and
       you believe that that was clearly insufficient because you believed her story, that she
       had been slipped a mickey that night, that is the only way that you can find her not
       guilty.

(Emphasis supplied).

       The defense also expressed a belief that the concurrent-causation instruction permitted the

jury to convict appellant if the jury believed that “alcohol was in any way responsible for her
                                                                                                 Otto--6

intoxication.”

       [DEFENSE]: Well, ladies and gentlemen, I’m having an awfully hard time with this,
       because the indictment charged that the State had to prove beyond a reasonable doubt
       that Adriane Otto was intoxicated by the introduction of alcohol into her system and
       they put on evidence about what they think was the cause of the intoxication and we
       put on evidence about that (sic) we think the cause of the intoxication was an
       involuntary–some kind of drug got in her system and that was the reason she was not
       able to drive with the use of her normal mental and physical faculties, and that’s the
       reason she was passed out in front of her ex-husband’s house in Jersey Village when
       the police found her.

       Now, if I read this clause, this extra charge that has been included in the jury
       charge, it sounds like if you find that the alcohol was in any way responsible for
       her intoxication, then she is guilty. That you have got to find that the drugs are
       virtually the sole reason for her intoxication before you can find her guilty.

       Now, if that’s the case, I don’t believe they have proved beyond a reasonable doubt
       that she was intoxicated by the introduction of alcohol into her system. And I’m not
       real sure exactly what this particular part of the charge says, but let me proceed with
       my original closing argument.

(Emphasis supplied).

       The court of appeals initially decided that the concurrent-causation instruction did not

improperly expand on the allegations in the indictment. See Otto v. State, 141 S.W.3d 238, 239-41

(Tex.App.–San Antonio 2004). On discretionary review, we remanded the case to the court of

appeal to reconsider its decision in light of our decision in Gray v. State, 152 S.W.3d 125

(Tex.Cr.App. 2004). On remand, the court of appeals decided that the concurrent-causation

instruction improperly expanded on the allegations in the indictment and thus allowed a “conviction

on a theory not previously alleged.” See Otto v. State, 211 S.W.3d 359, 362-63 (Tex.App–San

Antonio 2006). We granted review to decide whether this instruction improperly expanded on the

allegations in the indictment.

       In cases like this, in which the state alleges intoxication by alcohol alone and the defense
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claims it should win because the defendant ingested other intoxicating substances,2 our case law

establishes that a charge improperly expands on the allegations in the indictment when the charge

defines intoxication in terms of whether “the defendant was intoxicated by a combination of

unknown drugs and alcohol.” See Gray, 152 S.W.3d at 130.3 A charge does not, in these types of

cases, improperly expand on the allegations in the indictment when the charge defines intoxication

in terms of whether “the defendant [was] intoxicated with alcohol, either alone or in combination

with a drug that made him more susceptible to alcohol.” See id.4 This latter charge is commonly

referred to as a “synergistic effect” or “susceptibility” charge. See Gray, 152 S.W.3d at 128. Our

decision in Gray can be read as approving of the statement that the “combination of liquor and drugs

which would make an individual more susceptible to the influence of the liquor is in effect

equivalent to intoxication by liquor alone.” See id. (quoting Heard v. State, 665 S.W.2d 488, 490

(Tex.Cr.App. 1984)).



       2

        See Gray, 152 S.W.3d at 132 (noting that it is an abuse of the criminal justice system to
permit a defendant to “secure an acquittal merely by proving an alternative intoxicant”) and at 136
(Cochran, J., dissenting) (referring to this abuse of the criminal justice system as “Dickensian hair-
splitting”).
       3

        See also Rodriguez v. State, 18 S.W.3d 228, 229-32 (Tex.Cr.App. 2000) (charge improperly
expands allegations in charging instrument alleging intoxication by alcohol alone, when the charge
defines intoxication as “introduction of alcohol, a drug, or a combination of both of those substances,
into the body” and the application paragraph authorizes conviction if jury finds that defendant was
intoxicated “ by the reason of the introduction of a combination of unknown drugs and alcohol into
his body”).
       4

       See also Sutton v. State, 899 S.W.2d 682, 685 (Tex.Cr.App. 1995) (plurality op.) (charge
does not improperly expand allegations in charging instrument when it defines intoxication as
introduction of “alcohol, either alone or in combination with a drug that ma[k]e[s] [the defendant]
more susceptible to the alcohol”).
                                                                                                   Otto--8

       The court of appeals decided that the concurrent-causation instruction improperly expanded

on the allegations in the indictment because this instruction authorized a conviction under a

“combination” theory. The court of appeals decided:

       Unlike Sutton and Gray the jury charge did not include a susceptibility theory. In
       Gray and Sutton, the jury charge permitted conviction if the ingestion of drugs made
       the defendant more susceptible to being intoxicated by the charged
       intoxicant–alcohol. Here, the jury charge and instructions authorized the jury to find
       Otto guilty if it found her intoxicated by reason of (1) the introduction of alcohol into
       her body, the charged intoxicant, or (2) by the introduction of unknown drugs
       concurrently with alcohol–a combination theory. A jury’s finding that Otto was
       intoxicated by reason of introduction of unknown drugs concurrently with alcohol
       does not mean–like in Sutton and Gray–that the jury found Otto intoxicated by
       alcohol alone. Gray, 152 S.W.3d at 133 (stating “[i]n both this case and in Sutton,
       the charge permitted conviction only if the drugs made the defendant more
       susceptible to the alcohol”). Much like in Rodriguez, Gray and Sutton are
       distinguishable in that the jury charge expands on the allegations set forth in the
       charging instrument. See id. (“The charge in Rodriguez did not put forth an
       ‘additional susceptibility theory,’ to the jury. It therefore ‘improperly expanded on
       the allegations set forth in the information . . . .’”).

Otto, 211 S.W.3d at 362-63.

       We also believe that the concurrent-causation instruction, especially when considered with

the state’s closing jury arguments and its position at the charge conference, authorized appellant’s

conviction under a “combination” theory. See Gray, 152 S.W.3d at 130; Otto, 141 S.W.3d at 241-45

(Angelini, J., dissenting).5 While this instruction was responsive to the defensive theory that


       5

       The state seems to concede as much in its brief where it argues:

       While it is true that the instruction authorized [appellant’s] conviction on a
       combination theory, it only did so if alcohol was a “but for” cause of her
       intoxication. Moreover, the instruction forbade the jury to convict [appellant] if the
       combination of Rohypnol or another drug and alcohol was such that the effect of
       alcohol, standing alone, was insufficient to cause her intoxication.

(Emphasis supplied).
                                                                                                Otto--9

appellant’s intoxication was caused solely by an unknown drug, it still authorized the jury to convict

if it rejected this theory but still found that appellant’s intoxication was caused by a combination of

alcohol and the unknown drug.6 Nothing in this instruction or any other part of the charge authorized

the jury to convict appellant upon a finding that a combination of alcohol and the unknown drug

made appellant more susceptible to the alcohol as required by Gray, 152 S.W.3d at 130. We,

therefore, decide that this instruction improperly expanded on the allegations in the indictment. See

id.

       The dissenting opinion claims that the concurrent-causation instruction was proper because

it contains a “but-for” limitation, meaning that the jury could not have convicted appellant unless

it found that she would not have become intoxicated “but-for” the ingestion of alcohol. See

Dissenting op. at 8.7 The dissenting opinion further claims that the “but-for” limitation in the

concurrent-causation instruction distinguishes this case from our “combination” instruction cases

such as Rodriguez, because a “combination” instruction does not contain a “but-for” limitation. See

Dissenting op. at 8 (“combination” instruction is improper because it does not include any “but-for”




       6

       We agree with the state that the concurrent causation instruction was responsive to
appellant’s defense “that, if she had been intoxicated, only the drug she unknowingly ingested–not
alcohol–caused her intoxication.” This defense, however, could have been presented in the charge
without also authorizing the jury to convict on a “combination” theory.
       7

        The dissenting opinion further claims that the “synergistic effect” and “susceptibility”
instructions also implicitly contain this “but-for” limitation. See id. We agree that all three of these
instructions (the concurrent-causation, the synergistic effect, and the susceptibility instructions)
would not permit a jury to convict in cases like this without finding that the defendant would not
have become intoxicated “but-for” the ingestion of alcohol.
                                                                                                 Otto--10

limitation).8

        This, however, is beside the point. Even though the concurrent-causation instruction in this

case contains a “but-for” limitation and would not authorize a conviction if the jury found that the

wine appellant drank was clearly insufficient to cause her intoxication, this concurrent-causation

instruction also authorized the jury to convict if it found that appellant’s intoxication was caused by

appellant’s ingestion of alcohol “operating either alone or concurrently with another cause.”9 This,

and not any “but-for” considerations, is what brings this case within the “combination” instruction




        8

        According to the dissenting opinion, a “combination” instruction does not contain a “but-for”
limitation and is, therefore, improper, because a jury could improperly find that a combination of
alcohol (when the State alleged alcohol) and an unknown drug caused intoxication even though the
alcohol was clearly insufficient by itself to cause intoxication. See Dissenting op. at 8. It is not
apparent to us that a jury can make such a finding under a “combination” portion of an instruction
that defines intoxication as the “introduction of alcohol, a drug, or a combination of both of those
substances, into the body.” See Rodriguez, 18 S.W.3d at 229-32. Contrary to the claim made in the
dissenting opinion, the “combination” portion of this instruction (defining intoxication as “a
combination of both of those substances”) seems also to contain an implicit “but-for” limitation (i.e.,
this “combination” instruction would not authorize a jury to convict if the jury believed that the
alcohol was clearly insufficient by itself to cause intoxication).
        An instruction like the one in Rodriguez might authorize a conviction even though the
alcohol was clearly insufficient by itself to cause intoxication. But it is the “introduction of alcohol,
a drug” portion of the charge that would accomplish this, not the “combination of both of those
substances” portion of the charge.
        9

         In relevant part, the concurrent-causation instruction in this case instructed the jury to convict
if it found that “the intoxication of [appellant] would not have occurred but for [appellant’s] conduct,
as charged in the indictment, operating either alone or concurrently with another cause[.]” As applied
to this case, this instructed the jury to convict appellant if her intoxication would not have occurred
but for the introduction of “alcohol, operating either alone or concurrently with another drug.” See
also Footnote 1. There is no substantive difference between this instruction and the one in
Rodriguez that defined intoxication as the introduction of a “combination of both [alcohol and a
drug].”
                                                                                            Otto--11

cases such as Rodriguez.10 The dissenting opinion seems to recognize as much when it asserts that,

as the “concurrent causation (sic) instruction was applied to this case,” the State could have proved

that “alcohol plus something else–anything else-working together11 caused [appellant’s]

intoxication.” See Dissenting op. at 7; compare Rodriguez, 18 S.W.3d at 229-32 (jury instruction

is improper “combination” instruction and improperly expands indictment allegation of intoxication

by alcohol by defining intoxication as the “introduction of alcohol, a drug, or a combination of both

of those substances, into the body”).12

       The judgment of the court of appeals is affirmed.

                                                              Hervey, J.



Delivered: February 6, 2008
Publish




       10

       The record of the charge conference and the closing jury arguments also reflects that this is
how the parties viewed the concurrent-causation instruction as well.
       11

      We note that the phrase “working together” is arguably synonymous with “combine” or
“combination.” See Roget’s Desk Thesaurus at 98 (2001) (“bring together” and “put together” are
synonymous with “combine”).
       12

        The jury could have given effect to appellant’s defense in the application paragraph of that
part of the charge authorizing the jury to convict appellant if it found that she was intoxicated “by
the reason of the introduction of alcohol into his (sic) body.” A concurrent-causation instruction was
not even necessary to present the defense that something else, and not the alcohol, caused appellant’s
intoxication. In addition, with DWI not being a result-oriented offense, a concurrent-causation
instruction arguably is not even appropriate to the issue of what causes a person’s intoxication, as
explained in footnote 13 of the dissenting opinion. See Dissenting op. at 7 n.13. It, therefore, would
further appear that the State improperly expanded the allegations in the indictment when it requested
and received an instruction that was not even appropriate for the case.
