          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                    NO. PD–1722–10



                      MARIE LOUISE OUELLETTE, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRD COURT OF APPEALS
                       WILLIAMSON COUNTY



              M EYERS, J., filed a dissenting opinion.


                               DISSENTING OPINION

       The problem in this case boils down to one thing: evidence regarding the pill bottle

should never have been entered in the first place. Because the defendant said she had not

taken the medication within the last month, it was not relevant to the DWI charge. The

prescription pill bottle found in Appellant’s car is no more admissible to show that she
                                                                      Ouellette dissent–Page 2

was driving while intoxicated than Alcoholics Anonymous literature found in the car

would be. The defense should have filed a motion to suppress this evidence and objected

to its admission at trial. Unfortunately, the defense didn’t object until the jury charge

conference.

       To compound the problem, the court of appeals analyzed the improper jury charge

under a sufficiency of the evidence standard of review. The court pays lip service to

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), but then goes on to review the

factual and legal sufficiency of the evidence. The court of appeals noted that Ouellette

did not object to the admission of any evidence relating to the drugs and said, “Under a

legal sufficiency standard of review, we consider all evidence properly admitted at trial,

including evidence here that prescription drugs were present in Ouellette’s vehicle and

that Ouellette admitted that the medications were hers.” Ouellette v. State, NO. 03-08-

00566-CR, 2010 Tex. App. LEXIS 7053, at *8 (Tex. App.–Austin August 27, 2010)

(mem. op., not designated for publication). That may be true if this was a legal

sufficiency case. But it’s not, and legal sufficiency is not the standard used to determine

if a jury charge is correct. The court of appeals concludes that “factually sufficient

evidence supports Ouellette’s conviction of driving while intoxicated by reason of her

consumption of alcohol.” Id. at *10. Again, this may be true, but we don’t use a factual

sufficiency standard of review to say that a charge was properly submitted to the jury

either. I respectfully dissent to the majority’s failure to even acknowledge the court of
                                                                   Ouellette dissent–Page 3

appeals’s use of the wrong standard. I would remand this case to the court of appeals for

a proper analysis of the jury charge error.




                                                              Meyers, J.

Filed: October 12, 2011

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