       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00732-CR




                                  James Cunningham, Appellant

                                                  v.

                                   The State of Texas, Appellee



         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
       NO. 98-0197-2, HONORABLE ROBERT F. B. (SKIP) MORSE, JUDGE PRESIDING




               A jury found appellant James Cunningham guilty of driving while intoxicated. See

Tex. Pen. Code Ann. § 49.04 (West Supp. 2001). The court assessed punishment at incarceration

for 180 days and a $2000 fine, but suspended imposition of sentence and placed appellant on

community supervision. We will affirm.

               Appellant brings forward two related points of error. First, he contends the court

erred by overruling his motion to quash that portion of the information alleging that he drove with

an alcohol concentration of 0.10 or more. 1 Second, he contends the court erred by overruling his

objection to the inclusion of this theory of the offense in the jury charge.


   1
     The information contained two paragraphs, each alleging one of the two statutory definitions
of “intoxicated.” The first paragraph alleged loss of normal mental and physical faculties due to
alcohol consumption. See Tex. Pen. Code Ann. § 49.01(2)(A) (West Supp. 2001). The second,
challenged paragraph alleged alcohol concentration above the legal limit. See Act of May 29,
1993, 73d Leg., R.S., ch. 900, sec. 1.01, § 49.01(2)(B), 1993 Tex. Gen. Laws 3586, 3696 (Tex.
Pen. Code Ann. § 49.01(2)(B), since amended).
                To understand appellant’s contentions, it must be noted that this was appellant’s

second trial on this information. At the first trial, both theories of the offense were submitted to the

jury, which returned a general verdict of guilty. On appellant’s appeal, this Court held that appellant’s

intoxilyzer test results should not have been admitted in evidence absent interpretive testimony by a

qualified expert. Cunningham v. State, No. 03-99-00153-CR, slip op. at 7 (Tex. App.—Austin Apr.

27, 2000, no pet.) (not designated for publication) (citing Harrell v. State, 725 S.W.2d 208, 209-10

(Tex. Crim. App. 1986)). We further held that without expert testimony explaining to the jurors what

the numbers “0.117” and “0.118” signified, there was no evidentiary support for the allegation that

appellant’s alcohol concentration exceeded the legal limit and the court’s charge should not have

authorized appellant’s conviction on that basis over appellant’s objection. Id., slip op. at 11. We

reversed and remanded for a new trial.

                Before the second trial began, appellant moved to quash the second paragraph of the

information alleging excessive alcohol concentration. The motion was overruled. At trial, the State

offered evidence to support both the impaired faculties and alcohol concentration theories of the

offense, including the expert testimony interpreting the intoxilyzer results that it failed to offer at the

first trial. After the evidence was closed, appellant objected to the court submitting the alcohol

concentration theory of intoxication to the jury. This objection was also overruled. As at the first

trial, the jury was authorized to convict appellant of driving while intoxicated if it found that he drove

either while mentally and physically impaired due to alcohol consumption or while his alcohol

concentration exceeded the legal limit. Once again, the jury returned a general verdict of guilty.




                                                    2
                In his two points of error, appellant urges that the State was given a fair opportunity

at his first trial to prove that he drove with an alcohol concentration of 0.10 or more, and that the

State should not have been given a second opportunity to satisfy its burden of proof. This argument

rests on the holding in Burks v. United States, 437 U.S. 1 (1978). In that opinion, the Supreme Court

held that the Double Jeopardy Clause of the United States Constitution bars retrial of a defendant

whose conviction was reversed on appeal for lack of legally sufficient evidence to support the verdict.

Id. at 18. The holding in Burks is applicable to state criminal proceedings. Greene v. Massey, 437

U.S. 19, 24 (1978).

                In Burks, the Supreme Court distinguished a reversal due to a failure of proof from

a reversal due to trial error.


        [R]eversal for trial error, as distinguished from evidentiary insufficiency, does not
        constitute a decision to the effect that the government has failed to prove its case. As
        such, it implies nothing with respect to the guilt or innocence of the defendant.
        Rather, it is a determination that a defendant has been convicted through a judicial
        process which is defective in some fundamental respect, e.g., incorrect receipt or
        rejection of evidence, incorrect instruction, or prosecutorial misconduct. When this
        occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt
        free from error, just as society maintains a valid concern for insuring that the guilty
        are punished.


437 U.S. at 15. In our opinion on appellant’s first appeal, we did not hold that the State failed to

prove that he drove while intoxicated. Indeed, appellant did not challenge the sufficiency of the

evidence. Appellant’s original conviction was not reversed due to a failure of proof, but because of

the incorrect receipt of evidence and incorrect jury instructions. These were trial errors that did not

invoke the Double Jeopardy Clause on retrial.



                                                   3
              The points of error are overruled and the judgment of conviction is affirmed.




                                            __________________________________________

                                            Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: September 13, 2001

Do Not Publish




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