                                                                                               ACCEPTED
                                                                                          13-13-00369-CR
                                                                            THIRTEENTH COURT OF APPEALS
                                                                                  CORPUS CHRISTI, TEXAS
                                                                                    12/29/2014 5:31:16 PM
                                                                                        DORIAN RAMIREZ
                                                                                                   CLERK

                           In the Court of Appeals for the
                             Thirteenth District of Texas
                                                                  FILED IN
                                                          13th COURT OF APPEALS
JOSE ANGEL LERMA,                          §          CORPUS CHRISTI/EDINBURG, TEXAS
    Appellant                              §              12/29/2014 5:31:16 PM
                                           §                DORIAN E. RAMIREZ
v.                                         §                       Clerk
                                                     No. 13-13-00369-CR
                                           §
THE STATE OF TEXAS,                        §
    Appellee                               §

             Trial Number 219-81913-2012, in the 219th District Court
                             Collin County, Texas.
                  The Honorable Scott J. Becker, Judge Presiding.

                                ________________

                                 STATE’S BRIEF
                                ________________
                                               GREG WILLIS
                                               Criminal District Attorney
                                               Collin County, Texas

                                               JOHN R. ROLATER, JR.
                                               Assistant Criminal District Attorney
                                               Chief of the Appellate Division

                                               LIBBY J. LANGE
     Oral argument is not requested,           Assistant Criminal District Attorney
     unless Appellant requests argument.       2100 Bloomdale Rd., Suite 200
                                               McKinney, Texas 75071
                                               (972) 548-4323
                                               FAX (214) 491-4860
                                               State Bar No. 11910100
                                               llange@co.collin.tx.us

                                               LAUREN HOPKINS
                                               Assistant Criminal District Attorney
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE STATE’S ARGUMENTS ..................................................... 7

STATE’S REPLY TO APPELLANT’S FIRST ISSUE
  (The evidence was sufficient to prove DWI) ......................................................... 8

         The evidence is sufficient to support Appellant’s conviction for
         driving while intoxicated. Appellant exhibited classic signs of
         intoxication, the field sobriety tests indicated he was intoxicated, and
         he refused to provide a breath or blood sample. The jury was free to
         disbelieve Appellant’s alternative explanations for his behavior.

    Standard of Review ............................................................................................... 8
    Analysis ................................................................................................................. 9

STATE’S REPLY TO APPELLANT’S SECOND ISSUE
  (The indictment provided sufficient notice) ........................................................ 14

         Because Appellant failed to object to, or file a motion to quash, the
         indictment before trial, he cannot now complain that his indictment
         was defective because it failed to define “intoxication.” In any event,
         the definitions of “intoxicated” are evidentiary matters that need not
         be alleged in the indictment, and Appellant’s indictment satisfied
         constitutional notice requirements, such that he was aware of the
         charges against him and could prepare a defense.

    Appellant did not preserve error ......................................................................... 14



                                                                                                                              i
    The indictment was not defective ....................................................................... 15

PRAYER .................................................................................................................. 17

CERTIFICATE OF SERVICE ................................................................................ 18

CERTIFICATE OF COMPLIANCE ....................................................................... 18




                                                                                                                          ii
                                      INDEX OF AUTHORITIES

Constitutions, Statutes, Codes, and Rules

TEX. CODE CRIM. PROC. art. 1.14(b) ........................................................................14

TEX. CONST. art. I, § 10 ............................................................................................15

TEX. PENAL CODE § 49.01(2)(A) ...............................................................................9

TEX. PENAL CODE § 49.04(a) ...............................................................................9, 15

TEX. PENAL CODE § 49.09(b)(2) ................................................................................1

Tex. R. App. P. 33.1................................................................................................... 4

TEX. TRANSP. CODE § 724.015 ...................................................................................3

U.S. CONST. AMEND. VI ........................................................................................... 15



Cases

Bartlett v. State,
 270 S.W.3d 147 (Tex. Crim. App. 2008) .............................................................12

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ...............................................................8

Cotton v. State,
 686 S.W.2d 140 (Tex. Crim. App. 1985) ...............................................................9

Crenshaw v. State,
 378 S.W.3d 460 (Tex. Crim. App. 2012) .............................................................15

Crouse v. State,
 441 S.W.3d 508 (Tex. App.—Dallas 2014, no pet.) ............................................13




                                                                                                                       iii
Dodson v. State,
 No. 05-13-00297-CR, 2014 WL 429337 (Tex. App.—Dallas Feb. 3, 2014, no
 pet.) (not designated for publication) ...................................................................12

Jackson v. Virginia,
  443 U.S. 307 (1979) ...............................................................................................8

Kirsch v. State,
  306 S.W.3d 738 (Tex. Crim. App. 2010) ...............................................................9

Maldonado v. State,
 No. 02-13-00076-CR, 2014 WL 670745 (Tex. App.—Fort Worth Feb. 20, 2014,
 no pet.) (not designated for publication) ..............................................................12

Russell v. State,
 290 S.W.3d 387 (Tex. App.—Beaumont 2009, no pet.) ............................... 12, 13

State v. Barbernell,
  257 S.W.3d 248 (Tex. Crim. App. 2008) ...................................................... 15, 16

State v. Carter,
  810 S.W.2d 197(Tex. Crim. App. 1991), overruled by State v. Barbernell,
  257 S.W.3d 248 (Tex. Crim. App. 2008) .............................................................15

State v. Cordell,
  34 S.W.3d 719 (Tex. App.—Fort Worth 2000, pet. ref'd) ...................................15

State v. Villarreal,
  No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) ...............4

Studer v. State,
  799 S.W.2d 263 (Tex. Crim. App. 1990) .............................................................14

Teal v. State,
  230 S.W.3d 172 (Tex. Crim. App. 2007) .............................................................14

Wesbrook v. State,
 29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................................9




                                                                                                                    iv
Williams v. State,
 235 S.W.3d 742 (Tex. Crim. App. 2007) ...............................................................9

Zill v. State,
  355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.)........... 10, 11, 13




                                                                                                     v
               STATEMENT REGARDING ORAL ARGUMENT

       The State does not request oral argument, as it is not requested by Appellant.


                            STATEMENT OF THE CASE

       A jury found Appellant Jose Angel Lerma guilty of the third-degree-felony

offense of driving while intoxicated.1 CR 75, 76; 3 RR 177. Pursuant to the

parties’ agreement, the trial court sentenced Appellant to ten years in prison,

suspended his sentence, and placed him on community supervision for seven years.

CR 76; 3 RR 178-80.

                                  STATEMENT OF FACTS

       At approximately 1:00 a.m. on May 26, 2012, Marc Miscuraca was driving

northbound on the service road of Highway 121 (the Sam Rayburn Tollroad), when

he saw a silver Acura ahead of him driving “erratically.” 3 RR 20-21. The driver

was swerving in and out of his lane, and he eventually hit a curb, which either

knocked off one of his tires or caused it to go flat. 3 RR 3 RR 21. When

Miscuraca saw a Department of Public Safety Trooper parked at a nearby gas

station, he pulled over, and reported a possible drunk driver to Trooper Matthew

Kasenic. 3 RR 22.




1
 Appellant stipulated to two prior DWI convictions. See Tex. Penal Code § 49.09(b)(2); 3 RR
128, 136; SX 12.


                                                                                              1
       As Trooper Kasenic set out to investigate, he saw a fellow trooper, Trooper

Clayton Platt, pursuing the car with his lights and police siren activated. 3 RR 90-

92. He also noticed that the suspect’s front driver’s-side tire was missing, causing

sparks to fly everywhere and creating a loud, grinding noise. 3 RR 92-93. As

Trooper Kasenic joined the pursuit, he could see that the driver was staring straight

ahead, with both hands on the steering wheel, giving no indication that he needed

help. 3 RR 93. Because the suspect continued driving, Trooper Platt turned on his

loud speaker and ordered him to stop. 3 RR 30.

       A short time later, the suspect—later identified as Appellant—pulled over.

The troopers drew their weapons for officer safety, and Trooper Kasenic

commanded Appellant to exit the car.2 3 RR 31-32, 94. Appellant complied but

seemed “pretty confused.” 3 RR 94. Trooper Kasenic holstered his weapon, and

Trooper Platt ordered Appellant to get on the ground. 3 RR 32, 94. When

Appellant did not comply, Trooper Kasenic put him on the ground and placed him

in handcuffs. 3 RR 32, 95. The troopers then helped him up off the ground and

read him his Miranda rights. 3 RR 33. Appellant told them that he had been at a

bar, was heading to his home in Lewisville “right down the street,” and that he had

stopped to put air in his tire. 3 RR 33, 95. The troopers knew, however, that


2
 The recording of the stop was admitted into evidence and played for the jury. 3 RR 50, 108; SX
1.



                                                                                             2
Appellant was over twenty miles from Lewisville, that he was heading in the

wrong direction, and that his front left tire was missing. 3 RR 56, 73, 91, 97.

Trooper Platt noticed a strong smell of alcohol coming from Appellant’s breath,

that Appellant had “really glassy” eyes, and that he appeared not to understand

their directions. 3 RR 33. Trooper Kasenic detected a strong odor of alcohol on

Appellant’s breath and noticed that his speech was slurred. 3 RR 95. Appellant

said that he had been experiencing flu-like symptoms that day. 3 RR 39, 49.

       The troopers decided to pursue a DWI investigation, and Trooper Kasenic

secured the scene while Trooper Platt administered field sobriety tests to determine

whether Appellant was intoxicated.           3 RR 66, 98, 102-03.           Trooper Platt

administered the horizontal gaze nystagmus (HGN) test and had Appellant perform

the walk and turn and the one-legged stand tests. 3 RR 38-41, 42-46. Appellant

showed signs of intoxication on all three tests. 3 RR 41, 44, 46, 47. Based on

everything he had seen, Trooper Platt determined that Appellant did not have the

normal use of his mental and physical faculties due to the introduction of alcohol

into his body, and he arrested Appellant. 3 RR 47-49.

       Trooper Platt placed Appellant in the front seat of his patrol car, read him

the DIC-24 statutory warnings,3 and requested that he give either a blood or a


3
  These warnings set out the penalties associated with refusing to provide a blood or breath
sample. See Tex. Transp. Code § 724.015.



                                                                                           3
breath sample. Appellant refused both. 3 RR 51-52. Because Appellant had twice

before been convicted of DWI, Trooper Platt took Appellant to a hospital for a

mandatory blood draw.4 3 RR 52.

       The blood-draw results showed that Appellant’s blood alcohol level was

.063 grams of alcohol per 100 millileters of blood approximately one hour and 45

minutes after the stop. 3 RR 54, 110, 114-15, 118; SX 10, 13. A person with an

alcohol level of .08 or more satisfies the legal definition of intoxication. 3 RR 115.

Although Troopers Platt and Kasenic expected Appellant’s blood alcohol level to

be “pretty high,” Appellant’s blood-alcohol results did not change their opinion

that Appellant had been driving while intoxicated due to the ingestion of alcohol.

3 RR 74, 81, 104. While Trooper Platt agreed on cross-examination that he had

only had “very basic” first-responder training in identifying stroke symptoms or

neurological disorders, he disagreed that the symptoms for those medical

conditions were “very similar” to symptoms of intoxication. 3 RR 80.

       Forensic scientist Andrew Macy, who tested Appellant’s blood sample,

testified that, according to the National Safety Council’s Committee on Alcohol

and Other Drugs, anyone with an alcohol blood-alcohol level of .08 will have lost

the normal use of his or her mental and physical faculties due to alcohol but that
4
  Appellant has not previously challenged the legality of the blood draw and therefore has
forfeited any relief on this issue. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. Nov. 26, 2014) (holding that mandatory blood draws are unconstitutional). See
Tex. R. App. P. 33.1. In any event, the record makes clear that Appellant strategically relied on
the 0.063 blood-draw result to assert his innocence. 3 RR 18-19, 123, 167-70.


                                                                                               4
some people will have lost it with a blood-alcohol level as low as .05 and maybe

even lower. 3 RR 123. After discussing absorption and elimination rates and

retrograde   extrapolation,   Macey    stated   that   Appellant’s   blood    alcohol

concentration at 3:00 a.m. could have been higher, lower, or the same at 1:15 a.m.,

when Appellant was driving. 3 RR 116-17, 121. Macey could not say one-

hundred percent whether Appellant’s alcohol level while he was driving was .08 or

over, or under .06. 3 RR 123.

      Forty-six-year-old Appellant testified that his behavior that night was due to

medical issues. 3 RR 133-36, 148. He explained that he had gone to work the day

before but that he had felt ill from flu-like symptoms that had persisted for the past

two weeks. 3 RR 137. He went home after work but then went to a neighborhood

bar in Lewisville to meet some friends. He was not sure what time he arrived, but

it was late. 3 RR 139-40. He took three beers with him to the bar and drank either

two or three of them. 3 RR 141. After a while, he began getting a “really

massive” headache and feeling nauseous. His legs started to get kind of wobbly

and shaky, and his eyes got “kind of blurry,” and he could not focus. 3 RR 140,

154. He became confused. 3 RR 141. He left to go home, which was five to

seven miles away, but he ended up in McKinney. 3 RR 141-42. He did not

remember what happened after he left the bar that night. 3 RR 142, 147-48, 155.




                                                                                     5
       Appellant testified that his blurred vision lasted for two or three days after

his arrest and that his headaches lasted for close to three months. 3 RR 143-44.

His general practioner prescribed antibiotics and a fever reducer for high blood

pressure and a sinus infection. 3 RR 144. But his symptoms did not subside, and

he eventually got insurance and went to see other doctors. He is now being treated

for “[c]holesterol and high blood pressure” and for “possibly having an onset of a

ministroke.” 3 RR 146. On cross-examination, the State introduced Appellant’s

medical records. 3 RR 149-50; SX 16, 17. Although Appellant’s testimony was

not entirely clear regarding the content of the records, the State argued without

objection in closing argument that the medical records did not contain any

information about Appellant having a stroke.5 3 RR 175.




5
 Appellant’s medical records are difficult to decipher, and Appellant did not at trial and does not
now cite to any place in the records that supports his suggestion that he was suffering from a
neurological disorder the night of the offense and that this disorder caused the loss of his mental
and physical faculties.


                                                                                                 6
                SUMMARY OF THE STATE’S ARGUMENTS

State’s Reply to Appellant’s First Issue:

      The evidence is sufficient to support Appellant’s conviction for driving

while intoxicated.    Appellant exhibited classic signs of intoxication, the field

sobriety tests indicated that he was intoxicated, and he refused to provide a breath

or blood sample.      The jury was free to disbelieve Appellant’s alternative

explanations for his behavior, as it is the sole judge of the weight and credibility to

be given to witness testimony and other evidence.

State’s Reply to Appellant’s Second Issue:

      Because Appellant failed to object to or file a motion to quash the indictment

before trial, he cannot now complain that his indictment was defective for failing

to define “intoxication.”     In any event, the definitions of “intoxicated” are

evidentiary matters that need not be alleged in the indictment, and Appellant’s

indictment satisfied constitutional notice requirements, such that he was aware of

the charges against him and could prepare a defense.




                                                                                      7
             STATE’S REPLY TO APPELLANT’S FIRST ISSUE
                 (The evidence was sufficient to prove DWI)

      Appellant asserts that the evidence was insufficient to prove that he lost the

normal use of his mental or physical faculties due to the introduction of alcohol

because his behavior was easily explained by the medical conditions he was

suffering at the time and because his blood alcohol concentration was below the

legal limit. App. Br. 5, 10, 12.

      The evidence is sufficient to support Appellant’s conviction for driving

while intoxicated, however. Appellant exhibited classic signs of intoxication, the

field sobriety tests indicated he was intoxicated, and he refused to provide a breath

or blood sample.      The jury was free to disbelieve Appellant’s alternative

explanations for his behavior, as it is the sole judge of the weight and credibility to

be given to witness testimony and other evidence.

Standard of Review

      In determining the sufficiency of the evidence, the reviewing court considers

all evidence in the light most favorable to the jury’s verdict and determines

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The trier of fact is

the sole judge of the weight and credibility given to witness testimony, and it is

within the sole province of the jury to resolve any conflicts in the evidence.

                                                                                      8
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The reviewing

court may not act as a “thirteenth juror” and reweigh the jury’s determinations of

the weight or credibility of the evidence. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

Analysis

      A person commits the offense of driving while intoxicated (DWI) if he is

intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code

§ 49.04(a). “Intoxication” is defined alternatively in two ways: (1) subjectively—

not having the normal use of mental or physical faculties by reason of the

introduction of alcohol; or (2) objectively—having an alcohol concentration of

0.08 or more. See Tex. Penal Code § 49.01(2)(A). Here, the trial court’s jury

instructions authorized the jury to convict Appellant if it found that he was

intoxicated under the subjective definition and that he had twice been convicted of

DWI. CR 70-71.

      The Court of Criminal Appeals has identified evidence that “would logically

raise an inference that the defendant was intoxicated at the time of driving,”

including: erratic driving, slurred speech, glassy eyes, the odor of alcohol on the

person’s breath, admissions to drinking, and the inability to follow directions or

perform field sobriety. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.

2010); Cotton v. State, 686 S.W.2d 140, 142-43, 142 n. 3 (Tex. Crim. App. 1985).



                                                                                  9
The testimony of a police officer about a defendant’s behavior and opinion that the

defendant is intoxicated provides sufficient support to uphold a jury verdict. See

Zill v. State, 355 S.W.3d 778, 785-86 (Tex. App.—Houston [1st Dist.] 2011, no

pet.).

         Based on several classic signs of intoxication, Trooper Kasenic believed

Appellant had lost the normal use of his mental and physical faculties due to the

ingestion of alcohol; specifically, Appellant appeared to be oblivious to the fact

that he was driving on only three tires and that two marked vehicles with activated

lights and sirens were following him, his speech was slurred, and his breath had a

strong smell of alcohol. 3 RR 94-95, 103. Appellant’s .063 test result did not

change Trooper Kasenic’s opinion that Appellant was intoxicated, and he had no

reason to believe Appellant was suffering from a stroke or seizure that night. 3 RR

104.

         Trooper Platt also witnessed recognized signs of intoxication, including

Appellant’s glassy eyes, the smell of alcohol on his breath, and his inability to

follow directions or properly perform the field sobriety tests. 3 RR 32-33, 47.

Trooper Platt specifically explained that the HGN tests he administered “certainly

indicated intoxication.” 3 RR 41. Before administering the HGN tests, Trooper

Platt questioned Appellant to determine whether he was a good candidate. When

he asked Appellant about any recent head injuries, Appellant said that he had hit



                                                                                  10
his head on the first-aid kit at his office, but he also indicated that it was no longer

causing him any problems. 4 RR 38-39. Appellant did not complain of a headache

or any other medical condition, other than flu symptoms. 3 RR 49-50. When the

State asked Trooper Platt whether he could tell from this type of test whether a

person had suffered a recent traumatic head injury, he stated that “[g]enerally,

neurological issues can be seen,” explaining that

      [t]he pupils are not equal size, or there’s not equal tracking present
      because, basically, in the few rare cases that I’ve had that people don’t
      have equal pupil size, it generally indicates that they either have a
      previous condition or have a condition that they don’t know about. It
      could be something as serious as a brain tumor, or it could be
      something more minor that they’ve had for a long time.

3 RR 42. Trooper did not see any of those signs in Appellant; in fact, Trooper Platt

had “every reason to believe” that Appellant was intoxicated due to the

consumption of alcohol. 3 RR 41-42, 81. If Trooper Platt had thought Appellant

was suffering from a medical condition, he would have called an ambulance. 3 RR

47.

      In addition to the two troopers’ consistent conclusions that Appellant had

lost the normal use of his mental and physical faculties due to the ingestion of

alcohol into the body (3 RR 48-49, 81), the trial court admitted a redacted version

of the recorded encounter. 3 RR 50, 108; SX 1.             Therefore, the jury could

determine for itself whether Appellant’s behavior appeared to be the result of a

medical/neurological condition or due to intoxication. See Zill, 355 S.W.3d at 788;

                                                                                       11
Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.)

(“[B]ecause the jury saw the videotape of the stop, it could draw its own

conclusions from observing Russell’s behavior in deciding whether he appeared

intoxicated.”). The jury also could have considered Appellant’s refusal to take a

breath or blood test as indicating consciousness of guilt. See Bartlett v. State, 270

S.W.3d 147, 153 (Tex. Crim. App. 2008).

       While Appellant’s blood-alcohol concentration (BAC) was under 0.08 at the

time of the test, this fact is not dispositive and does not, without more, prove

Appellant’s innocence.6        Indeed, the National Safety Council’s Committee on

Alcohol and Other Drugs has determined that some people will have lost the

normal use of their mental and physical faculties due to alcohol with a blood-

alcohol level as low as .05 and maybe even lower. 3 RR 123. And the subjective

definition of intoxication covers this situation. Moreover, forensic scientist Macey

testified that Appellant’s 3:00 a.m. 0.063 BAC level could have been higher—up

to .08 or .085—at the time he was stopped at 1:15 a.m., although it also could have

been lower or the same. 3 RR 121-22.




6
 See Dodson v. State, No. 05-13-00297-CR, 2014 WL 429337, at *1-4 (Tex. App.—Dallas Feb.
3, 2014, no pet.) (not designated for publication) (holding DWI evidence sufficient, despite
defendant’s .063 and .058 blood-alcohol level two hours after the stop); Maldonado v. State, No.
02-13-00076-CR, 2014 WL 670745, at *1-5 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (not
designated for publication) (holding DWI evidence sufficient where defendant’s breath samples
registered at alcohol concentrations of .071 and .072).


                                                                                              12
      Although Appellant presented alternative explanations for the admitted loss

of his physical and mental faculties, it was the jury’s function to resolve any

conflicts in the evidence, and the jury was free to accept or reject any and all of the

evidence presented by either side. See Crouse v. State, 441 S.W.3d 508, 515 (Tex.

App.—Dallas 2014, no pet.). Thus, the jury was free to believe the troopers’

testimony that Appellant appeared to be intoxicated due to the ingestion of alcohol

and disbelieve Appellant’s alternative explanation that a medical/neurological

condition caused his erratic behavior. See Zill, 355 S.W.3d at 787 (“Although

Appellant’s behavior during the traffic stop may have been consistent with a head

injury, her behavior also constitutes recognized evidence of intoxication.”);

Russell, 290 S.W.3d at 396-98 (holding sufficient evidence to support DWI

conviction, despite Russell’s contention that his behavior and symptoms were

caused by hypolglycemia and diabetes).

      For these reasons, the evidence was sufficient to support Appellant’s

conviction, and his first issue should be overruled.




                                                                                      13
              STATE’S REPLY TO APPELLANT’S SECOND ISSUE
                 (The indictment provided sufficient notice)

      Appellant asserts that his indictment was fatally defective because it failed to

define “intoxication,” and therefore, his conviction should be reversed and his case

remanded for a new trial. App. Br. 13-16.

      Because Appellant failed to object to or file a motion to quash the indictment

before trial, he forfeited any complaint on this issue. Additionally, the definitions

of “intoxicated” are evidentiary matters that need not be alleged in the indictment,

and Appellant’s indictment satisfied constitutional notice requirements, such that

Appellant was aware of the charges against him and could prepare a defense.

Appellant did not preserve error

      As Appellant acknowledges, he did not file a motion to quash the indictment

or object to any “defect, error, or irregularity of form or substance” in the

indictment before the trial commenced. App. Br. 13; see Tex. Code Crim. Proc.

art. 1.14(b). Thus, he forfeited the right to object, and he “may not raise the

objection on appeal or in any other postconviction proceeding.” Id.; see Teal v.

State, 230 S.W.3d 172, 176-77 (Tex. Crim. App. 2007) (“Texas law now requires

the defendant to object to any error in the indictment before the day of trial and

certainly before the jury is empaneled.”); Studer v. State, 799 S.W.2d 263, 273

(Tex. Crim. App. 1990). Because Appellant failed to preserve error, this issue

should be overruled.

                                                                                     14
The indictment was not defective

       A criminal defendant is entitled to fair notice of the specific charged offense.

See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The charging instrument must

convey this notice sufficiently so that the accused may prepare his defense. See

State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008).

       A DWI indictment provides adequate notice when it sets out the elements of

the offense, as it did in this case.7 See Tex. Penal Code § 49.04; Crenshaw v. State,

378 S.W.3d 460, 465-66 (Tex. Crim. App. 2012). While “intoxication” is an

element of DWI, its two alternative definitions—subjective and objective

intoxication—are not. Indeed, these definitions are the means by which “‘the State

may prove intoxication, rather than alternate means of committing the offense.’”

Crenshaw, 378 S.W.3d at 466 (quoting Barbernell, 257 S.W.3d at 256). Thus,

“the State may simply allege that a person was ‘intoxicated’ to satisfy the notice

requirement.” Id.

       Appellant cites State v. Cordell, 34 S.W.3d 719, 721 (Tex. App.—Fort

Worth 2000, pet. ref’d), for the proposition that an indictment charging a person

with DWI must allege which definition of “intoxicated” the State will attempt to

prove at trial. App. Br. at 16. The Cordell court, however, relied on State v.

Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991), which the Court of Criminal

7
 The indictment against Appellant alleged that he operated a motor vehicle in a public place
while intoxicated and that he previously had been twice convicted of misdemeanor DWI. CR 12.


                                                                                           15
Appeals overruled in Barbernell, 257 S.W.3d 248, 255-56. The Barbernell court

held that the definitions of “intoxicated” in the DWI statute were evidentiary, and

therefore, do not need to be alleged in the charging instrument. Id. at 256.

      Because Appellant’s DWI indictment provided him with fair notice of the

offense of which he was being charged, it was not defective, and his second issue

should be overruled.




                                                                                  16
                                   PRAYER

      Appellant’s trial was without prejudicial error.    The State prays that

Appellant’s conviction and sentence be affirmed.


                                           Respectfully submitted,


                                           GREG WILLIS
                                           Criminal District Attorney
                                           Collin County, Texas

                                           JOHN R. ROLATER, JR.
                                           Assistant Criminal District Attorney
                                           Chief of the Appellate Division

                                           /s/ Libby J. Lange
                                           LIBBY J. LANGE
                                           Assistant Criminal District Attorney
                                           2100 Bloomdale Rd., Suite 200
                                           McKinney, TX 75071
                                           (972) 548-4323
                                           FAX (214) 491-4860
                                           State Bar No. 11910100
                                           llange@co.collin.tx.us




                                                                                  17
                         CERTIFICATE OF SERVICE

      The State has e-served counsel for Appellant, Derek M. Harkrider, and sent

a courtesy copy of the State’s Brief to harkriderlaw@gmail.com, on this the 29th

day of December, 2014.




                                             /s/ Libby J. Lange
                                             Libby J. Lange


                      CERTIFICATE OF COMPLIANCE

      This brief complies with the word limitations in Texas Rule of Appellate

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 3,534

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).



                                             /s/ Libby J. Lange
                                             Libby J. Lange




                                                                                  18
