                          NUMBER 13-17-00468-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JESUS CHRISTOPHER GARCIA,                                                  Appellant,

                                              v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                       MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Hinojosa
               Memorandum Opinion by Justice Benavides

      Appellant Jesus Christopher Garcia was convicted of driving while intoxicated with

a child passenger, a state jail felony.   See TEX. PENAL CODE ANN. § 49.045 (West,

Westlaw through 2017 1st C.S.). By a single issue, Garcia challenges his conviction on

the ground that the trial court erred by allowing the State (appellee) to change the

indictment on the eve of trial which deprived him of constitutionally required notice. We
affirm.

                                    I.    BACKGROUND

          Garcia was traveling to Corpus Christi with his wife and her son the morning of

July 1, 2016. He was stopped by a Department of Public Safety (DPS) Trooper because

his temporary license plate was “flapping” and not readable at the required distance; his

tail light was out; he failed to drive in a single lane; and he was driving in the left lane

when not passing. During the traffic stop, Trooper Jason Vinson noticed that Garcia’s

speech was slow and slurred, and he had trouble finding words. The trooper suspected

that Garcia was intoxicated and administered standardized field sobriety tests. Garcia

stated that he had taken prescribed medication the night before, a long-acting form of

hydrocodone. Trooper Vinson requested that a drug recognition expert (DRE), Trooper

Natee Wong, come to the scene and administer additional field sobriety tests.

          Trooper Wong further questioned Garcia who admitted that he smoked marijuana

about an hour before he and his family began their trip. Trooper Wong’s testing found

Garcia had both vertical and horizontal gaze nystagmus, Garcia failed the one leg stand,

the walk and turn, the Rhomberg test, and the finger count test. Garcia was arrested for

driving while intoxicated with a child passenger. The child in the back seat was fourteen

years old.

          Garcia was indicted in January 2017. At a bond hearing on May 31, 2017, a copy

of Trooper Vinson’s report was admitted as an exhibit. The report reflected that Garcia’s

blood was taken for testing, that the arresting trooper did not smell alcohol on Garcia, and

Garcia admitted to taking medication. The report stated that Trooper Jason Vinson


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“determined [Garcia] was intoxicated by reason of introduction of controlled substance

into the body. [He] did not have the normal use of his mental or physical faculties.”

        On July 17, 2017, the morning of trial, and before voir dire, the State abandoned a

portion of the indictment that included intoxication by reason of alcohol. The original

indictment read as follows, with the language the State abandoned underlined below:

        IN THE NAME OF AND BY THE AUTHORITY OF THE STATE OF TEXAS,
        THE GRAND JURY . . . JESUS CHRISTOPHER GARCIA . . . did then and
        there operate a motor vehicle in a public place while the said defendant was
        intoxicated by reason of the introduction of alcohol into the body, and said
        vehicle was occupied by a passenger who was then and there younger than
        15 years of age . . . .

Defense counsel objected, “We [were] put on notice for a certain defense, intoxication by

reason of alcohol, and prepared our – our case with said defense in mind.” The trial

court overruled the objection.1 After jury selection, the trial was continued until July 20,

2017.

        The evidence at trial consisted of the testimony of both troopers, a forensic

scientist, and a clinical pharmacist. The forensic scientist discussed Garcia’s blood tests

which revealed concentrations of marijuana and hydrocodone.                                The dose of

hydrocodone was within therapeutic levels.                 According to the forensic scientist, the

concentration of marijuana metabolites in Garcia’s blood suggested that Garcia was a

habitual marijuana smoker.              The clinical pharmacist testified that marijuana and

hydrocodone have synergistic effects which increase the depressant effects of each.

        Garcia presented his family doctor’s testimony that she prescribed the long-acting


        1 The trial court stated, “There’s a certain amount of case law . . . that discusses how the State can

prove the element of intoxication and also that it does not have to be alleged in the indictment. Therefore,
your objection is overruled.”
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form of hydrocodone to Garcia for diabetic nerve pain, along with other medication.

Garcia’s wife testified that Garcia was not impaired that day.

       The jury found Garcia guilty and sentenced him to two years’ imprisonment in a

state jail facility and to a fine of $5,000. Garcia’s counsel filed a motion for new trial

challenging the sufficiency of the evidence. The motion was denied by operation of law.

This appeal ensued.

                                  II.    THE INDICTMENT

       Garcia’s sole issue alleges that the State’s withdrawal of the allegation of alcohol

intoxication from the indictment deprived him of his constitutional right to notice pursuant

to the Sixth Amendment and pursuant to Article I, Section 10 of the Texas Constitution.

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

A.     Applicable Law and Standard of Review

       The Texas and United States Constitutions grant a criminal defendant the right to

fair notice of the specific charged offense. U.S. CONST. amend. VI; TEX. CONST. art. 1, §

10; TEX. CONST. art. V, § 12b. Whether an indictment is sufficient presents a question of

law that we review de novo. State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App.

2017); State v. Barbernell, 257 S.W.3d 248, 251–52 (Tex. Crim. App. 2008); see also

State v. Zuniga, No. 13-14-00316-CR, — S.W.3d —, 2018 WL 4624270, at *3 (Tex.

App.—Corpus Christi Sept. 27, 2018, pet. ref’d).

       To determine whether an indictment provides sufficient notice, we are required to

identify the elements of the offense and whether the statutory language is sufficiently

descriptive of the charged offense. Zuniga, 512 S.W.3d at 907. An indictment must be


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specific enough to inform a defendant of the nature of the accusation against him so that

he can prepare a defense. State v. Jarreau, 512 S.W.3d 352, 354–55 (Tex. Crim. App.

2017); State v. Mott, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

         “Not every change to the face of an indictment is an amendment.           In some

instances, [the] change is merely an abandonment.” Mayfield v. State, 117 S.W.3d 475,

476, (Tex. App.—Texarkana 2003, pet ref’d). An abandonment may delete surplusage

that does not change the substance of the indictment and therefore does not implicate

article 28.10.    Balentine v. State, 474 S.W.3d 682, 684–85 (Tex. Crim. App. 2013)

(discussing TEX. CODE CRIM. PROC. ANN. art 28.10 (West, Westlaw through 2017 1st

C.S.).

B.       Discussion

         The elements of driving while intoxicated with a child passenger are: 1) a person,

2) is intoxicated, 3) while operating a motor vehicle, 4) in a public place, and 5) has a

passenger “who is younger than 15 years of age.” TEX. PENAL CODE ANN. § 49.045.

According to the Barbernell court, although intoxication is an element of the offense, the

manner of proof does not constitute different manners or means of commission. 257

S.W.3d at 256. Furthermore, the type of intoxicant is not an element of the offense. Id.

at 254 (citing Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004); Balentine, 474

S.W.3d at 685 (“Rather than a substantive alteration, an abandonment is the deletion of

unnecessary language from the indictment.”). Here, the indictment alleged each of the

elements of the offense, even after the trial court allowed the State to strike the language

regarding alcohol from the indictment.


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      In Gray, the indictment charged driving while intoxicated due to alcohol

consumption. 152 S.W.3d at 126. The trial evidence showed that Gray was also taking

an antidepressant. The jury was instructed that it could find Gray was intoxicated if the

drugs made him more susceptible to the influence of alcohol. Id. The Gray court held

that the jury charge was proper and did not expand on the allegations in the charging

instrument. Id. at 133.

      Garcia relies on Saathof v. State and Ferguson v. State to support his claim that

the definition of intoxication was an element of the offense which must be alleged in the

indictment to provide sufficient notice. 891 S.W.3d 264, 267 (Tex. Crim. App. 1994); 622

S.W.2d 846 (Tex. Crim. App. 1981). However, Saathof, which relied on Carter v. State,

810 S.W.2d 197 (Tex. Crim. App. 1991), was overruled by Barbernell, 257 S.W.3d at

254–55 (holding that the definitions of intoxication in section 49.01(2) are “purely

evidentiary” and do not need to be alleged in a charging instrument to provide adequate

notice). “Saathoff, therefore, has no precedential value on this point.” Jarreau, 512

S.W.3d at 355.

      Ferguson was a drug case in which the indictment was challenged for failing to

state the manner or means of the alleged delivery of the controlled substance. 622

S.W.2d at 848. Delivery may occur through actual transfer, constructive transfer, or an

offer to sell. Id. The Barbernell court recognized that when “the prohibited conduct is

statutorily defined to include more than one manner or means of commission, the State

must, upon timely request, allege the particular manner or means it seeks to establish.”

257 S.W.3d at 251. However, in Barbernell, the court of criminal appeals described the


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State’s proof of intoxication using the statutory definitions as purely evidentiary. Id. at

256 (holding that “[t]he conduct proscribed by the Penal Code is the act of driving while

in a state of intoxication. . . . [T]he definitions of ‘intoxicated’ are purely evidentiary

matters; therefore, they do not need to be alleged in a charging instrument to provide a

defendant with sufficient notice.”) (internal citations omitted).

       Garcia also relies on State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998), and

Oluerbi v. State, 870 S.W.2d 58 (Tex. Crim. App. 1994). In Mays, the State appealed

after the trial court quashed an indictment for barratry that tracked the statutory language.

The court of criminal appeals held that the indictment should not have been quashed

because the statutory definition of “solicit employment” in the penal code provided

constitutionally sufficient notice. Id. at 408–09. Oluerbi involved credit card abuse.

870 S.W.2d at 59.         The court of criminal appeals held that because the indictment

charged use of a “fictitious” credit card, a term not defined by statute, the indictment did

not provide sufficient notice in the face of a motion to quash. Id. at 62.

       Here, the indictment alleged the elements of the offense and the statute defines

intoxication. See TEX. PENAL CODE ANN. § 49.01(2) (West, Westlaw through 2017 1st

C.S.). 2   The indictment as modified provided constitutionally adequate notice.             See

Barbernell. 257 S.W.3d at 254–55.


       2   (2) “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, a combination of two or more of those substances, or any other
                substance into the body; or
                (B) having an alcohol concentration of 0.08 or more.

TEX. PENAL CODE ANN. § 49.01(2) (West, Westlaw through 2017 1st C.S.).
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       We overrule Garcia’s single issue.

                                   III.     CONCLUSION

       We affirm the judgment of the trial court.




                                                         GINA M. BENAVIDES,
                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
21st day of March, 2019.




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