    The Attorney              General of Texas
                       June   23,   1980




Honorable Maurice S. Pipkin                Opinion No. m-197
Executive Director
State Commission on Judicial Conduct
P. 0. Rex 12266                            Re: Whether “public intoxication”
Austin, Texas                              is a lesser included offense of
                                           “driving while intoxicated.”

Dear Mr. Pipkim

      You ask if the offense of “public intoxication” is a lesser included
offense of “driving while intoxicated.”

     In 1973, the Texas Code of Criminal Procedure was amended to
estabDsh a new scheme for determining and dealing with “lesser included
offensesn Article 37.08’thereof now reads:

           In the prosecution for an offense with lesser included
           offenses, the jury may find the defendant not guilty
           of the greater offense, but guilty of any lesser
           included offense.

Article 37.09 of the Code of Criminal Procedure states:

           An offense is a lesser included offense if:

             a,    it is established by proof of the same or less
                   than all the facts required to establish the
                   commission of the offense charged;

      Article 37.09 of the Code defines lesser included offenses in terms of
the relationship between the lesser offense and the “offense charged.lt If the
facts necessary to be proven in a particular case in order to establish the
“offense charged” would also prove the lesser offense, the lesser offense is
an %cluded” offense in that case, whether or not in a different case the
greater offense could be proved on facts that would not include the lesser
offense. Campbell v. State, 571 S.W.%d161(Tex. Crim. App. 1976);&el         v.
                                                                   ~~~~2d
                           :. Grim. App. 1976); Day v. State. 532 SW.:
(Tex.Crim. App. 1976% For that reason, the determm ation of whether a
particular offense bears such a relationship to the offense charged must be
made co a ca!~ by case basis. Campbell v. State, supra.




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Honorable Maurice S. Pipkin    -     Page Two    (Mw-197 1



      Thus, unless we can say as a matter of law that it would never be necessary in a
particular case to prove facts establishing the offense of “public intoxication” in order to
also prove the offense of %iving while intoxicated.,” we cannot say that under no
circumstances would “public intoxication” be a lesser included offense of “driving while
intoxicated.” See Jones v. State, 586 S.W.2d 542 (Tex. Crim. App. 1979). ~Cf. Ahearn v.
State, 588 S.Wm 327 (Tex. Crim. App. 1979). In our opinion “public intoxication” may
under certain circumstances be a lesser included offense where the offense charged is
“driving while intoxicated.”

      The offense of “public intoxication” is committed by a person if (1)he appears in a
public place (2) under the influence of alcohol or any other substance, (3) to the degree he
may endanger himself or another. Penal Code S 42.08.

      An essential element of the proof necessary to convict under the foregoiq penal
provision is a showing that the defendant was intoxicated to the extent that he might
endanger himself or another. Dickey v. State, 652 S.W.Bd467 (Tex. Crhn. App. 1977). See
also Loden v. State, 561 S.W.2d 2 (Tex. Crim. App. 1978). It has been sugested that %
“endanger”element of proof is not required in prosecutions for %&iv& while intoxicated,”
and that “public intoxication” cannot,’ therefore, be a lesser included offense of that
offense. However, an examination of holdings of the Court of Criminal Appeals compels a
different conch&on.

      Article 67Ol&l, V.T.C.S., provides:

           Any person who drives or operates an automobile or any motor
           vehicle ~uponany public road or highway in this State, . . . or upon
           any street or alley within the limits of an incorporated city, town
           or village, while such person is intoxicated or under the influence
           of intoxicating liquor, shall be guilty of a misdemeanor. d..

It is readily seen that the foregoing “driving while intoxicated” statute does not mention
the endangerment of persons, and in Stewart v. State, 299 S.W. 646 (Tex. Crim. App. 19271,
the court observed that the law does not withhold its sanction until an intoxicated
individual on the highway kills somebody OFwrecks his own or some other car:

           If he is drunk, or is under the influence of intoxicants, he is
           forbidden to drive an automobile on a public highway in this state,
           end the law is violated when he does so drive his oar, as much as if
           he keeps the middle of the road as if he wrecks a dozen cars.

Id at 647. Moreover, in-                    165 S-W.24i 904 (Tex. Crim. App. 19421,the court
zd of ?lrivlng while intoxicated”:
                                                       I
            It must be borne in mind that the                is composed chiefly of
            two elements:     First,                            secon4 drivhg an
            automobile upon a public highway               such condition.




                                            p.   637
Honorable Maurice S. Pipkin      -   Page Three      (Mw-197 1



-Id at 905.
      But those cases address cfiIy the non-necessity of showing that harm resulted from
danger (Stewart, s ra), end the necessity that the state prove both intoxication and
driving (Snider, supra
                   3- . Neither of them holds that “driving while intoxicated” is not per
dangerous to persons, If it Is, the need for proof thereof is obviated because “driving
while intoxicated” would endanger persons as a matter of law. Proof of the. two chief
elements would establish a thin-k danger.

      In Day v. State, w         the Court of Criminal Appeals decided that “criminal
trespass” was a lesser included offense in a case where the offense charged was
“burglary,” although the criminal trespass statute (but not the burglary statute) expressly
required for conviction thereunder proof that the defendant “had notice that entry was
forbidden, or received notice to depart.” See Penal Code SS 30.02, 30.05. The state
argued that enotice” was an additional elemZiZ not necessary to prove In ‘estabIIshlng a
burg&y, and that criminal treqass could, therefore, never be a lesser In&&d offen&
of burglary. But the court said:

              [Iln a situation such as that presented in the present case where
              proof shows that the accused entered a building not then open to
              the public, the hotice’ requIremerit would be satisfied by proof of
              entry into the buIIdIng since *notice’ can be establfshed by a
              Tenfen& or other enclosure obviously desIgned to exclude
                        I. . . . Therefore, ths elements of criminal trespass,
              including ‘notice,’ could be established by proof of the same facts
              necessary to prove~the offense of burglary. The proof of additional
              facts would not be necessary, and the requirements of 37.09(l) . . .
              would be satisfied.

(Emphasis added). Day v. State, B        at 306.

      Perhaps the evil that the “driving while intoxicated” statute intends to correct is so
obvious that courts seldom need to discuss it, but it has been discussed on occaslor~ In
Johnson v. State, 147 S.W.2d 8ll (Tex. Crim. App. 19411,the court, speaking of the Vrunk
driving” law, said, “The object and purpose of the law is to prevent men, women, and
children from being wounded and maimed by persons driving automobIles while in a state
of intoxication.” 147 S.W.2d 614. In Blackburn v. State, 204 S.W.Bd619 (Tex. Crim. App.
1947), it was said, “The purpose of the law is to protect people against drunk drivers. . . .
- at 620.
Id

      In our opinion, the elements of “public intoxication,” including intoxication “to the
degree he may endanger himself or others,” could be established in some cases by proof of
the same facts necessary to prove the offense of “driving while intoxicated” Proof of
additional facts would not be necessary.

      The soundness of this conclusion is illustrated by the case of Dickey v. State, S~IPFB,
decided in 1977. Dickey was a.probationer who was discovered drunk and asleep in the




                                          p.   638
Honorable Maurice S. Pipkin    -   Page Four (&S+lgj’)



front seat of a car outside a lounge in the middle of the night. His probation was revoked
on grounds he had committed the offense of “public intoxication.” On appeal he argued
that the evidence was insufficient to show that he was a danger to himself or anyone else.
The court rejected that argument, concluding that potential danger was enough:

           In the Instant case appellant rendered himself subject to potential
           danger by becoming so intoxicated that he fell asleep in a car in
           front of a lounge in the middle of the night. The State points out in
           its brief that appellant was ‘vulnerable to an assortment of
           difficulties.’ It is also possible that appellant could have awakened
           and taken it upon himself to drive himself and his companion home,
           which would have constituted an even clearer danger. (Emphasis
           added). && at 466.

It is apparent from the foregoir&Ithat had Dickey actually attempted to drive the car and
been oharged with %drivlng while intoxicated” rather than “public intoxication,” the latter
offense would nevertheless have been a “lesser included offense” of the one charged. See
BrItton v. State, 576 S.W.2d 685 (Tex. Crim. App. 1979); See Rx arte Ross 522 S.W.2dm
‘(Tex. Crim. App. 1975);-Cf. m                      597 --5---+
                                                         P.2d 478 5th CU. 1979).

      You next esk whether the public interest underlying article 67Ol&l, V.T.C.S, would
be served If judgea were permitted to knowingly dispose of a driving while intoxicated
case in which public intoxication Is not a lesser .included offense In a manner which does
not result In the administrative or penal sanctions imposed by sections 24 and 25 of article
6667b, V.T.C.S., and article 67OEl, V.T.C.S. This question on the public interest raises
policy rather than legal questions and accordingly cannot be addressed In the opinion
Pro==
                                      SUMMARY

           The offense of “public intoxication” may sometimes be a lesser
           Included offense when U%ng      while intoxicated” is the offense
           charged.




                                             Attorney General of Texas

JOHN W.FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General




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Honorable Maurice S. PipkIn -   Page Five   (m-197)



Prepared by Bruce Youngblood

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
Gerald Carruth
Susan Garrison
Rick Gilpin
Bruce Youngblood




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