                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-08-00304-CR


BRADLEY KELTON CRENSHAW                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                     ----------

                  DISSENTING OPINION ON REMAND

                                     ----------

      The majority has done exactly what the Texas Court of Criminal Appeals

has instructed it to do, as it must. Because I am not the author of the majority

opinion, I express my very fundamental disagreement in appropriately respectful

dissent.

      On original submission, this court held that when the State, in its charging

instrument, tells the defendant what act of his the State will prove was unlawful,
the State is bound by that pleading.1 (I attach the original, unpublished opinion

as an appendix.) That is, when the State told Appellant that it was going to prove

that he committed the offense of driving while intoxicated (DWI) by not having the

normal use of his mental and physical faculties, under the “expressio unius

maxim . . . [which] is a product of logic and common sense, expressing the

learning of common experience that when people say one thing they do not

mean something else,”2 Appellant and this court were foolish enough to believe

that the State was bound by its notice.3 Imagine our surprise when we learned

that in spite of testimony that (1) the witness did not have all the information

necessary for an admissible extrapolation estimate of Appellant’s blood alcohol,

and (2) retrograde extrapolation was not widely accepted, but, rather, was

actually quite controversial, the witness was allowed to inform the jury that

Appellant would surely have tested at a level of over .08 at the time he was

driving. As icing on the cake, the jury was let in on the secret that a .08 reading

is really unnecessary because everyone loses the normal use of his mental and

physical faculties at a reading of .04. Nevertheless, the trial court included in the

charge the jury instruction that a person is intoxicated at a level of .08, despite


      1
       See Crenshaw v. State, No. 02-08-00304-CR, 2011 WL 3211258, at *4
(Tex. App.—Fort Worth July 28, 2011) (mem. op., not designated for publication)
(Crenshaw I), rev’d, 378 S.W.3d 460 (Tex. Crim. App. 2012) (Crenshaw II).
      2
       Williams v. State, 965 S.W.2d 506, 507 (Tex. Crim. App. 1998).
      3
       Crenshaw I, 2011 WL 3211258, at *3–4.


                                         2
the fact that the only pleading was loss of normal use of Appellant’s mental or

physical faculties. And, although Appellant was never tested for the presence of

marijuana in his system, the jury was also allowed to convict if they found that he

was intoxicated as a result of ingesting alcohol or alcohol and marijuana.

      If the abstract portion of the charge containing the definitions is irrelevant,

how do we deal with the line of cases turning on overly expansive or overly

restrictive definitions in the abstract portion of the jury charge?4 If the charging

instrument, no matter what it alleges, does not limit the State’s scope of proving

the offense, why do we have charging instruments? They all contain “on or

about dates” and have been held to include the entire limitation period.5 The

names do not have to be correct.6 The county does not have to be correct;

pleading the county is merely a venue allegation that need be proved only by a

preponderance of the evidence if there is an objection.7 This court is required to




      4
       See, e.g., Alvarado v. State, 704 S.W.2d 36, 38 (Tex. Crim. App. 1985)
(op. on reh’g); Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990).
      5
       Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).
      6
        See Byrd v. State, 336 S.W.3d 242, 247–48 (Tex. Crim. App. 2011) (citing
Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002)).
      7
       Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005).


                                         3
“presume that venue was proved in the trial court unless it was disputed in the

trial court or the record affirmatively shows the contrary.”8

      Now the State does not have to plead the manner in which it intends to

prove the offense.9 Traditionally, not only was the State required to prove the

manner and means by which a defendant did the acts,10 intoxication was

required to be voluntary.11 As Judge Cochran noted in her concurring opinion in

Farmer v. State, “Texas, like most states, recognizes an affirmative defense of

involuntary intoxication, and it applies even in DWI cases.”12 The Texas Court of

Criminal Appeals has repeatedly instructed us in recent years that the manner of

intoxication is evidentiary and does not have to be included in the charging

instrument, yet intoxication refers to a voluntary act of a defendant that must be

proved. That is, it must be proved that the defendant voluntarily took alcohol,

marijuana, zolpidem, or whatever the intoxicant or combination of intoxicants into


      8
        Meraz v. State, 415 S.W.3d 502, 506 (Tex. App.—San Antonio 2013, no
pet.) (citing Tex. R. App. P. 44.2(c)(1)); see also Rhyne v. State, 387 S.W.3d
896, 901–02 (Tex. App.—Fort Worth 2012, no pet.).
      9
       State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008).
      10
        See State v. Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991),
overruled by Barbernell, 257 S.W.3d at 256.
      11
        See Ex parte Ross, 522 S.W.2d 214, 218 (Tex. Crim. App.) (interpreting
former DWI statute article 6701l-1 of the Texas Civil Statutes to require voluntary
intoxication), cert. denied, 423 U.S. 1018 (1975), abrogated on other grounds by
Ex parte McCain, 67 S.W.3d 204 (2002).
      12
         411 S.W.3d 901, 908 (Tex. Crim. App. 2013) (Cochran, J., concurring)
(citation omitted).

                                          4
his body. That is an act of the defendant that must be proved and that the

defendant must defend against. Why, then, is he not entitled to notice so that he

can provide a defense at trial?

      Trial by ambush is not the goal of our justice system.            The expert

necessary to discuss alcohol intoxication is likely not the expert necessary to

discuss the effect of a particular antihistamine in light of a particular patient’s

history. And the discussion of retrograde extrapolation or the interaction of two

drugs or a particular substance and alcohol would likely require a different kind of

expertise.

      If a defendant is not entitled to notice of his own actions that the State will

prove as elements of his guilt, why not just give him a statute number? Instead

of our current method of pleading, why does the State not just say, “John Smith

violated section xxxx of the penal code. Guess how?” As I previously explained

in a published dissent,

             I believe that since the decision in Almanza v. State, jury
      charges in criminal cases have grown increasingly irrelevant. Our
      courts have held that an error in the application paragraph that
      instructs the jurors on the elements they must find in order to convict
      is harmless if the abstract definitional paragraph is correct. Courts
      have also held that an error in the abstract definitional portion of the
      jury charge does not egregiously mislead the jury if the application
      paragraph is correct. Apparently, if any portion of the jury charge is
      correct, the erroneous verdict form is rendered harmless.

             Case law instructs us that we must assume that the jury
      follows the instructions in the jury charge. Contemporaneously, we
      must assume that the jury does not follow an erroneous instruction in
      the jury charge if there is some correct instruction in the charge. I
      am frankly confused by these rules because they appear in conflict


                                         5
with each other and because I do not understand how the jury, who
is presumed to follow the instructions in the jury charge, is supposed
to know which instructions to follow and which instructions to ignore.
At some point, common sense must intrude into this alternative
universe we have created. In other contexts, words have meaning.
Apparently in the world of jury charges, they do not. Delivery does
not mean delivery. Delivery means possession. The prosecutor
who bore the unenviable burden of explaining to the jury that
delivery means possession candidly explained to the jury that the
charge made no sense. As the majority points out,

            In the State’s closing argument, a prosecutor
      properly told the jury,

                    Now, when the court was reading the
             Court’s Charge to you, some of you may
             have noticed on the verdict form she said
             delivery of a controlled substance. Don’t let
             that throw you. That’s a quirk of the way
             the statute is worded. It covers delivery or
             possession with intent to deliver.

       There is not a hint of actual delivery anywhere in the record.
Appellant was not accused of delivery of a controlled substance. He
was accused in the indictment only of possession and possession
with intent to deliver. Yet the jurors were instructed that they could
convict only of possession or of delivery. Possession with intent to
deliver was not an option, although that is what Appellant was
accused of in the indictment. The jurors were allowed to convict only
of an offense for which Appellant was not indicted if they found any
intent to deliver the controlled substance.

       In Almanza, the jurors were instructed to convict Almanza of
aggravated rape whether they found him guilty of “plain rape” or
aggravated rape. The objection that Almanza was not accused of
aggravated rape was held to be no objection to the jury charge.
Now we have created new fictions: a jury is presumed to follow the
instructions in a jury charge unless the instruction is incorrect. If
there is an incorrect instruction and a correct instruction, the jury is




                                   6
      presumed to know which is correct and to ignore the incorrect
      instruction.13

      I, therefore, join Judge Clinton and suggest the following jury charge:

      Now, ladies and gentlemen:

      You must consider whether Bradley Kelton Crenshaw is guilty of some

offense against the peace and dignity of the State. A person commits DWI if he

operates a motor vehicle in a public place while he is intoxicated. Although I

could provide you with a definition of intoxication, it would be irrelevant. You

might want to consider whether he is guilty of DWI. Several witnesses think he

was intoxicated, some because he drank alcohol, and some because he ingested

marijuana, although nobody knows how much. So in deliberating the guilt of

Bradley Kelton Crenshaw, you might also want

      to talk of many things:
      Of shoes—and ships—and sealing wax—
      Of cabbages—and kings—
      And why the sea is boiling hot—
      And whether pigs have wings.14

                                                   /s/ Lee Ann Dauphinot

                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: February 27, 2014

      13
       Vanbelle v. State, 2013 WL 1908302, at *5–6 (Tex. App.—Fort Worth
May 9, 2013, pet. ref’d) (Dauphinot, J., dissenting) (citations omitted).
      14
        Id. (quoting Cane v. State, 698 S.W.2d 138, 141 (Tex. Crim. App. 1985)
(quoting Lewis Carroll, Through the Looking–Glass, Ch. 4, quoting the Walrus)).

                                        7
Appendix




   8
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-08-00304-CR


BRADLEY KELTON CRENSHAW                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      This case raises certain issues fundamental to our system of criminal

justice, especially those issues involved in substantial justice and fair play. In a

system in which the indictment or information is to provide notice to a defendant

of the charges against which he must defend himself and there is no ability to

request a bill of particulars, and in which the definition of intoxication has been

held to be evidentiary only and not an element of the offense, can the State in
      1
       See Tex. R. App. P. 47.4.
fundamental fairness plead only the subjective definition of intoxication in two

different paragraphs, alleging both consumption of alcohol alone and

consumption of alcohol and/or drugs, offer flawed evidence of per se intoxication

by retrograde extrapolation, and then properly obtain an instruction to the jury

that the definition of intoxication includes the per se definition? We hold that the

State may not.

       A jury convicted Appellant Bradley Kelton Crenshaw of driving while

intoxicated (DWI). The trial court sentenced him to 120 days’ confinement and

an $850 fine, probated for twenty-four months.       In his sole issue, Appellant

challenges the trial court’s jury charge, which instructed the jury on both the

subjective definition and the per se definition of intoxication despite the

information having alleged only the subjective definition. Because we hold that

Appellant suffered some harm from the trial court’s erroneously instructing the

jury on the per se definition, we reverse the trial court’s judgment and remand

this case to the trial court for a new trial.

I. Factual and Procedural Background

       In two paragraphs, Appellant was charged by information with “operat[ing]

a motor vehicle in a public place while [he] was intoxicated by not having the

normal use of his mental or physical faculties by reason of the introduction” of

(1) alcohol, or (2) “alcohol, a controlled substance, a drug, a dangerous drug, or

a combination of two or more of these substances into his body.”




                                                2
      At trial, in anticipation of the State’s introduction of his blood test results

and extrapolation testimony, Appellant objected under rules 401 and 402 that the

evidence would be confusing to the jury and that it was not relevant to whether

he had had the normal use of his faculties at the time of the alleged offense. The

trial court overruled the objection, and Appellant requested and was granted a

running objection.

      Southlake police officer Andrew Anderson testified that at about 2:00 a.m.

on February 19, 2007, he arrested Appellant for DWI and that he took Appellant

to the hospital for a blood draw at about 4:00 a.m. Anderson further testified that

when he asked Appellant if he had been drinking, Appellant stated that he had

had bourbon and Coke at 1:00 a.m.

      Officer Anderson also testified that he smelled marijuana “on [Appellant’s]

breath” and that he found a leaf of marijuana on the console between Appellant

and the passenger. Was he testifying that Appellant was eating marijuana a la

Alice B. Toklas?2    Officer Anderson made no mention of smelling marijuana

smoke in the car, on Appellant’s clothing, or in his hair. Officer Anderson made

no mention of finding any joint, roach, ashes, or other indication that marijuana

had been smoked. He arrested the passenger for public intoxication. Although

Appellant’s blood was drawn and tested for alcohol, no blood test was performed


      2
      Alice B. Toklas, The Alice B. Toklas Cook Book 259–60 (Harper Perennial
paperback. ed. 2010) (1954) (garnering notoriety for including a recipe for
brownies that included marijuana as an ingredient).


                                         3
for the presence of marijuana. There was no evidence of how much marijuana, if

any, Appellant “indulged in the use of,” and no evidence of any other controlled

substance, drug, or dangerous drug in Appellant’s system.

      Andrew Macey, a forensic scientist with the Texas Department of Public

Safety, testified that the blood sample taken from Appellant approximately two

hours after his stop contained .07 grams of alcohol per 100 milliliters of blood.

Angela Caretta Springfield, chief toxicologist for the Tarrant County Medical

Examiner, testified that under Texas law, .08 is legal intoxication. She further

testified that if a person is 6'1" and 140 pounds, has had “one or two bourbon

and Cokes,” is stopped by the police at 2:06 a.m., and had a blood draw at 4:01

a.m., if the blood test showed a blood alcohol concentration (BAC) of .07, then at

the time of his driving, the person would have had a BAC of at least .08.

      During the charge conference, the State objected to the proposed

definition of intoxication, which did not state that a person was intoxicated if he

had an alcohol concentration of .08 or more. Citing State v. Barbernell,3 the

State argued that to give notice to Appellant, it only needed to plead intoxication

in the information.   The State argued that the information required no other

references as to an objective or subjective standard and that “[e]verything after

that is icing on the cake.”   The State requested the trial court to provide a




      3
       257 S.W.3d 248, 256 (Tex. Crim. App. 2008).


                                        4
definition in the charge that tracked the language of the information and also

included the .08 per se intoxication standard.

      Appellant asserted that the State went beyond the mere plea of

intoxication in the information and alleged loss of normal use of mental and

physical faculties. He argued that the inclusion of the subjective standard in the

information limited his notice, that he relied on the notice in preparation of his

defense, that the addition of the per se definition in the jury charge would be

prejudicial, and that the jury charge should track the language of the information.

The trial court included the per se definition in the jury charge but did not include

it in the application paragraph.

      Specifically, over objection, the trial court instructed the jury that

      “Intoxicated” means:

      A. Not having the normal use of mental or physical faculties by
      reason of the introduction of alcohol, a controlled substance, a drug,
      a dangerous drug, or a combination of two or more of these
      substances into the body; or

      B. Having an alcohol concentration of 0.08 or more.

The trial court also instructed the jury, without objection, that

             You are further instructed that if a defendant indulges in the
      use of Marijuana to such an extent that he thereby makes himself
      more susceptible to the influence of alcohol than he otherwise would
      have been, and by reason thereof becomes intoxicated from recent
      use of alcohol, he would be in the same position as though his
      intoxication was produced by the use of alcohol alone.

      The application paragraph permitted the jury to convict Appellant of DWI if

they found beyond a reasonable doubt that he


                                           5
      did not have the normal use of his mental or physical faculties by
      reason of the introduction of alcohol into his body, and while so
      intoxicated, by reason of the introduction of alcohol into his body,
      either alone or by introduction of alcohol, a controlled substance, a
      drug, a dangerous drug, or a combination of two or more of these
      substances into the body, and on the said date did then and there
      drive or operate a motor vehicle in a public place while intoxicated.

II. Charge Error

      In his sole issue, Appellant complains that the jury charge erroneously

instructed the jury to convict him based on either the “subjective” definition of

intoxication or the “per se” definition despite the State’s sole reliance on the

subjective allegation in the information. After this case was submitted, this court

requested briefing of the following subsidiary but pertinent matters:4

    Whether an indictment that alleges intoxication by lack of normal use
     but that does not allege per se intoxication constitutes notice to a
     defendant that the State will not seek to convict on a theory of per se
     intoxication;

    Whether a claim of lack of notice of prosecution on a per se theory of
     intoxication requires a motion for continuance or some other request
     for additional time to secure an expert in order to preserve the notice
     claim or whether the objection to the admission of the evidence
     sufficiently preserves the claim;

    Whether the reasoning of the court in Cook v. State,5 in holding that
     definitions in a jury charge must be limited to the conduct elements,
     applies in this case;
      4
       See Tex. R. App. P. 38.1(f), 38.9; Pena v. State, 191 S.W.3d 133, 138
(Tex. Crim. App. 2006); Leadon v. State, 332 S.W.3d 600, 613 n.3 (Tex. App.—
Houston [1st Dist.] 2010, no pet.); Ramirez v. State, 301 S.W.3d 410, 419 n.6
(Tex. App.—Austin 2009, no pet.); Ramsey v. State, 249 S.W.3d 568, 576 n.5
(Tex. App.—Waco 2008, no pet.); see also Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989).
      5
       884 S.W.2d 485, 491 (Tex. Crim. App. 1994).


                                         6
    Whether the objected-to testimony regarding retrograde
     extrapolation complained of in Appellant’s brief was properly
     admitted under the Daubert-Kelly standard and, if not, whether its
     admission was reversible error in light of the jury instruction;

    If the testimony of retrograde extrapolation was improperly admitted
     and if there is no properly admitted evidence of per se intoxication,
     whether it was error to include per se intoxication in the definition of
     intoxication submitted to the jury;

    Whether there was sufficient evidence of the amount of marijuana in
     Appellant’s system and the effect of that amount of marijuana to
     support the synergistic effect instruction and whether the instruction
     was sufficient to properly guide the jury in applying the instruction, or
     whether the evidence of the extent to which Appellant “indulge[d] in
     the use of marijuana” and of the effect of that amount of marijuana
     was inadequate so that the instruction was not supported by the
     evidence or, in light of the evidence, was confusing to the jury; and

     Whether it was error to submit to the jury the application paragraph
      allowing the jury to convict if it found Appellant was intoxicated as a
      result of the introduction of a drug or a dangerous drug when there
      was no evidence of the introduction of a drug or a dangerous drug; if
      it was not error to submit the application paragraph, why was it not
      error; if it was error, whether the objection to the charge included an
      objection to that application paragraph; and if it was error, whether
      such error was harmless, merely somewhat harmful, or egregiously
      harmful.

      Appellate review of error in a jury charge involves a two-step process.6

Initially, we must determine whether error occurred.7

      In Barbernell, the Texas Court of Criminal Appeals held that an information

alleging neither definition of intoxication nevertheless provided Barbernell with



      6
        Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also
Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).
      7
       Abdnor, 871 S.W.2d at 732.


                                         7
adequate notice of the charges against him,8 but that is not the situation here.

The State here conscientiously elected to narrow its case by relying solely on the

subjective definition in the information but at trial sought and obtained (over

timely objection) the benefit of both the subjective and per se definitions in the

charge.    Because the information did not allege the “per se” theory of

intoxication, there was no notice to Appellant of any intent to offer expert

evidence of retrograde extrapolation and no opportunity for Appellant to secure

an expert to rebut the information. Additionally, although the manner in which a

defendant becomes intoxicated is evidentiary,9 when the State pleads two of

three methods of proving intoxication, analogizing to the “familiar canon firmly

grounded in Texas jurisprudence . . . the rule of expressio unius est exclusio

alterius, reasoning that . . . inclusion of a specific limitation excludes all other

limitations of that type,”10 essentially, the State is informing a defendant that it will

not seek to prove intoxication by the third means. This conclusion is particularly

important when the excluded method requires expert testimony, and, therefore,

to effectively meet and dispute the evidence of the State’s expert, a defendant




      8
       257 S.W.3d at 256.
      9
       See id.
      10
          Christian v. State, 286 S.W.3d 63, 66 (Tex. App.—Texarkana 2009, pet.
ref’d) (footnote omitted).


                                           8
must rely on the assistance of an expert and give timely notice of intent to call the

expert in order adequately to prepare for trial.11

      The State can prove intoxication by proving per se intoxication or by

proving lack of normal use of mental or physical faculties,12 both evidentiary

matters and not elements of the offense and therefore not required to be pled. 13

But when the State gives specific notice that it will prove one form of intoxication

and not the other, the State may be bound by the allegations in the same way

that it would be bound if it had provided the same information in response to a

discovery request, if to hold otherwise would encourage gamesmanship and trial

by ambush.14 Consequently, we hold that because the information specifically


      11
        See Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093 (1985);
Aldrich v. State, 296 S.W.3d 225, 233 (Tex. App.—Fort Worth 2009, pet. ref’d)
(en banc) (citing Ex parte Briggs, 187 S.W.3d 458, 466–67 (Tex. Crim. App.
2005), in which the court granted habeas relief on ineffective assistance of
counsel grounds because trial counsel failed to investigate or obtain experts for
economic reasons, not as trial strategy, and holding that Aldrich’s trial counsel
wrongly believed that he had no duty to complete any independent investigation);
see generally Mata v. State, 46 S.W.3d 902, 917 (Tex. Crim. App. 2001) (holding
that the trial court abused its discretion by admitting the State’s evidence of
retrograde extrapolation).
      12
        Tex. Penal Code Ann. §§ 49.01(2), 49.04(a) (West 2011).
      13
        Barbernell, 257 S.W.3d at 256.
      14
        See, e.g., Panetti v. Quarterman, 551 U.S. 930, 932, 127 S. Ct. 2842,
2846 (2007) (holding state court failed to provide Panetti the procedures he was
entitled to under the Constitution with respect to his claim that he was
incompetent to be executed; notwithstanding his undisputed substantial threshold
showing of insanity, the state court on repeated occasions conveyed information
to defense counsel that turned out not to be true, provided at least one significant
update to the state without providing the same notice to Panetti, and failed to

                                          9
gave Appellant notice that the State would prove intoxication by proving lack of

normal use of his mental and physical faculties, the information failed to provide

adequate notice to Appellant that the State would prove per se intoxication.

Additionally, because the information specifically gave notice of the State’s intent

to prove intoxication by lack of normal use of his mental and physical faculties,

we hold that Appellant was effectively denied notice of the charges ultimately

leveled against him in the jury charge, and, correspondingly, that the jury charge

erroneously expanded the scope of the charges against him by incorporating the

per se definition of intoxication.15

      We further hold that the trial court erred by including the per se definition

because the evidence does not support such inclusion. In Cook, the Texas Court



provide him with an adequate opportunity to submit expert evidence in response
to the report filed by the court-appointed experts); Pope v. State, 207 S.W.3d
352, 360 n.28 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1350 (2007); State
v. Moff, 154 S.W.3d 599, 603 (Tex. Crim. App. 2004); Jaubert v. State, 74
S.W.3d 1, 4–5 (Tex. Crim. App.) (Cochran, J., concurring) (“[T]he letter of the law
is not always a perfect reflection of the spirit of the law, . . . [which] is to ensure
that Texas criminal proceedings are not a contest of clever gamesmanship or
trial by ambush. There is very little formal pretrial discovery mandated in Texas
criminal proceedings, but our Rules of Evidence are drafted to ensure that Texas
criminal practitioners remain gentlemen and gentlewomen who do not spring
evidentiary surprises on their adversaries.”), cert. denied, 537 U.S. 1005 (2002).
      15
        See Otto v. State, 273 S.W.3d 165, 170–71 (Tex. Crim. App. 2008)
(holding that the jury charge may not enlarge the offense alleged and authorize
the jury to convict on a basis or theory permitted by the jury charge but not
alleged in the indictment); Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App.
2003); Abdnor, 871 S.W.2d at 738; Castillo v. State, 7 S.W.3d 253, 258–59 (Tex.
App.—Austin 1999, pet. ref’d); see also Webb v. City of Dallas, 211 S.W.3d 808,
820 (Tex. App.—Dallas 2006, pet. denied).


                                          10
of Criminal Appeals held that “it is error for a trial judge to not limit the definitions

of the culpable mental states as they relate to the conduct elements involved in

the particular offense.”16 Applying that rule here, we would hold that it is error for

a trial judge to not limit the definitions of intoxication to the facts before the court.

But we do not need to so tax ourselves, because, as the Texas Court of Criminal

Appeals has explained since Barbernell,

             Under the Texas DWI statute, intoxication may be proven in
      either of two ways: (1) loss of normal use of mental or physical
      faculties or (2) alcohol concentration in the blood, breath, or urine of
      0.08 or more. The first definition is the “impairment” theory, while
      the second is the “per se” theory. They are not mutually exclusive,
      and, as long as there is evidence that would support both definitions,
      both theories are submitted in the jury charge.17

      In Mata, the Texas Court of Criminal Appeals explained, “Retrograde

extrapolation is the computation back in time of the blood-alcohol level—that is,

the estimation of the level at the time of driving based on a test result from some

later time.”18 The court noted that a particular absorption rate depends on a

variety of factors, including, inter alia, food in the stomach, gender, weight, age,

amount consumed, and period of consumption.19 The Texas Court of Criminal




      16
        884 S.W.2d at 491.
      17
        Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010) (citations
omitted) (emphasis added).
      18
        46 S.W.3d at 908–09.
      19
        Id. at 909–10.


                                           11
Appeals also noted that the scientific community is divided over whether

retrograde extrapolation is reliable.20

      In the case now before this court, Dr. Springfield offered testimony of

retrograde extrapolation over objection, yet lacked vital information necessary to

an accurate extrapolation result: the period of consumption, whether food was in

the stomach, and an accurate assessment of the amount consumed.

      Dr. Springfield opined that at the time Appellant was driving, his BAC

alcohol level was above .08. Yet Dr. Springfield also candidly admitted that,

rather than being “widely accepted in the scientific community,” extrapolation is

the subject of controversy in the scientific community. She testified that “[o]ne

has to have certain information available in order to make a reliable

extrapolation. Otherwise, there are too many assumptions that are made. It may

not be credible in a particular instance that’s being considered.”

      Dr. Springfield was then given certain assumptions, and her response to

certain assumptions was that the BAC was at .08 or below. When given other

assumptions, she concluded that the BAC would definitely be greater than .08.

      She also testified that, although in her opinion a person began losing

normal use of mental or physical faculties at a BAC of .04, “when someone has a

.10 alcohol level in their body,” he or she would not necessarily show signs of

intoxication.   Dr. Springfield also testified that such a person would appear


      20
        Id. at 910.


                                          12
intoxicated to only 50% of people observing them. Does this mean that the

observed person has or has not lost the normal use of his or her mental or

physical faculties?

      Additionally, as in Mata, the State did not offer evidence of the reliability of

Dr. Springfield’s retrograde extrapolation testimony that Appellant’s BAC was .08

at the time he was operating the motor vehicle and did not dispute her testimony

that under another set of assumptions, it was below .08. Indeed, Dr. Springfield

did not testify that the reliability of extrapolation was widely accepted in the

scientific community. She testified that extrapolation was not widely accepted in

the scientific community, was controversial, and was reliable only if certain

information, which she did not have, was available.            Her conclusion that

Appellant’s BAC was .08 or above was dependent on speculative assumptions

provided to her and not on actual evidence.

      When asked if she could use the evidence contained in the record (time of

driving, time of blood draw, and a BAC result of .07) to “figure out what the

alcohol concentration was at the time of driving,” Dr. Springfield replied, “Yes.

There are some ways of doing that, but . . . I would need other information.” The

State then provided various hypothetical situations that Dr. Springfield testified

would definitely result in a BAC of above .08.

      Although Dr. Springfield testified that she could state unequivocally that a

person who was 6'1", weighed 140 pounds, had had his last drink at 1:00 a.m.,

and had stated that he had one or two bourbon and Cokes would have had a


                                         13
BAC of above .07 before the police stopped him at 2:06 a.m. if that person also

registered a .07 BAC at 4:01 a.m., she also testified to the contrary. “When I say

that it would take three to four drinks of that kind to reach a .07, I’m saying if you

could take the alcohol and put it directly into somebody’s bloodstream . . . .”

[Emphasis added.]

      Then the defense added consumption of food to the hypothetical situations

posited originally by the State:

      Q:     . . . [I]f someone had—over a three-hour period had a bourbon
             and Coke in the first hour, ate dinner, and then had another
             bourbon and Coke? Would that change how you—

      A:     Yes.

             ....

      A:     Well, if you made a measurement two hours later, the alcohol
             would be virtually zero.

      In discussing the controversy about extrapolation, Dr. Springfield stated,

“Um, there is controversy about [extrapolation].         One has to have certain

information available in order to make a reliable extrapolation. Otherwise, there

are too many assumptions that are made. It may not be credible in a particular

instance that’s being considered.”      She then assumed that she had all the

information, but she testified that the results were affected by food absorption

and elimination, information that the record does not reflect that she had. Nor did

she know the amount of alcohol content in any drink that Appellant consumed.

We therefore hold that the trial court additionally erred by including the “per se”



                                         14
theory of intoxication in the definition of intoxication provided in the jury charge

because there was no properly admitted evidence of it under the requirements of

Daubert and Kelly.21

III. Harm

      Error in the charge, if timely objected to in the trial court, as this error was,

requires reversal if the error was “calculated to injure the rights of [the]

defendant,” which means no more than that there must be some harm to the

accused from the error.22 In other words, a properly preserved error will require

reversal as long as the error is not harmless.23 In making this determination, “the

actual degree of harm must be assayed in light of the entire jury charge, the state

of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel and any other relevant information revealed by the

record of the trial as a whole.”24




      21
        See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 590, 593–
94, 113 S. Ct. 2786, 2795, 2796–97 (1993); Kelly v. State, 824 S.W.2d 568, 573
(Tex. Crim. App. 1992).
      22
        Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor, 871 S.W.2d
at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)
(“A claim of jury-charge error is reviewed using the procedure set out in
Almanza.”).
      23
        Almanza, 686 S.W.2d at 171.
      24
        Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).


                                         15
      The evidence of guilt was conflicting.       The videotape of the arrest

contradicted some of Officer Anderson’s written statements in his report.

Appellant did not stumble, and his speech was not slurred. Although acting

nervous has been held to contribute to reasonable suspicion to detain a person, 25

here, Officer Anderson testified that Appellant was not nervous, and Officer

Anderson believed that the absence of nervousness was a suspicious

circumstance.

      The videotape does not reveal whether Appellant was intoxicated at the

time he operated a motor vehicle, nor does it reveal that Appellant was

intoxicated at the time the videotape was made.

      Further, the rest of the jury charge is problematic.26      The trial court

improperly instructed the jury on how it was to consider evidence of marijuana.

Although Officer Anderson found a marijuana leaf and said that he smelled

marijuana on Appellant’s breath, no blood test was conducted to determine

whether there was any marijuana in Appellant’s blood stream or, if so, how much.

Further, there was no evidence that the amount of marijuana in Appellant’s

system, if any, would have a certain or, indeed, any effect on the action of

alcohol in Appellant’s system. “Texas courts are forbidden from instructing the

jury on any presumption or evidentiary-sufficiency rule that does not have a

      25
       See, e.g., Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002).
      26
       See McClinton v. State, 121 S.W.3d 768, 769 (Tex. Crim. App. 2003)
(Cochran, J., concurring).


                                       16
statutory basis. Such an instruction is an improper comment on the weight of the

evidence.”27

      Additionally, the application paragraph improperly allowed the jury to

convict if they found that Appellant was intoxicated as a result of the introduction

of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of

two or more of these substances. There was no evidence from any source of the

presence of any drug or dangerous drug in Appellant’s system at the time he

drove or at any time after he was detained. There was, therefore, no evidence to

support that instruction or to support a conviction on that basis. 28 When the

evidence is insufficient to support a conviction, the trial court should eliminate

that theory of conviction from the jury’s consideration and not include it in the

charge.29

      Accordingly, applying the test required by Almanza, we hold that Appellant

suffered some harm from the trial court’s erroneous definition of intoxication in

the jury charge. We sustain his sole issue.




      27
       Kirsch, 306 S.W.3d at 747 (citing Brown v. State, 122 S.W.3d 794, 799–
800 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 938 (2004)).
      28
        See, e.g., Otto, 273 S.W.3d at 169–70.
      29
         Griffin v. United States, 502 U.S. 46, 60, 112 S. Ct. 466, 474 (1991);
Payne v. State, 194 S.W.3d 689, 698 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); see also Guevara v. State, 191 S.W.3d 203, 206–08 (Tex. App.—San
Antonio 2005, pet. ref’d).


                                        17
IV. Conclusion

      Having sustained Appellant’s sole issue, we reverse the trial court’s

judgment and remand this case to the trial court for a new trial.



                                                    /s/ Lee Ann Dauphinot

                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

MCCOY, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2011




                                        18
