author: KEASLER, J., MEYERS, J., COCHRAN, J.,

text:
    Thomas Kerr GRAY, III, Appellant, v. The STATE of Texas.
    No. PD-1202-03.
    Court of Criminal Appeals of Texas.
    Dec. 15, 2004.

      Brian W. Wice & Renato Santos, Jr., Houston, for Appellant.
    Erie Kugler, Asst. District Attorney, Houston, Matthew Paul, State’s Attorney, Austin, for State.

      . The information charging "Thomas Kerr Gray, III,” was amended at trial to “Thomas Kerr Gray, II." But the judgment and the appellate court’s opinion both refer to "Thomas Kerr Gray, III.” For the sake of consistency, our style also uses this name.

   OPINION

KEASLER, J.,

delivered the opinion of the Court,

joined by KELLER, P.J., and WOMACK, HERVEY, and HOLCOMB, JJ.

The State charged Thomas Kerr Gray, III, with driving while intoxicated due to alcohol consumption. Evidence at trial showed that Gray was taking anti-depressant medication at the time. The jury instructions authorized finding that Gray was intoxicated if he took drugs which made him more susceptible to the influence of alcohol than he otherwise would have been, and therefore became intoxicated from the alcohol. We conclude that this jury charge properly applied the law to the facts of this case.

I. FACTS

The day after Tropical Storm Allison flooded Houston in 2001, Michael White-sides was driving his brand new pick-up truck on a wet, muddy road. The car behind him, he later learned, was driven by 17-year-old Gray. He noticed Gray because Gray “seemed ... unaware” and “was one foot off [Whitesides’s] bumper.” When Whitesides’s tires inevitably sprayed mud on Gray’s windshield, Gray “erratically pulled to the median,” then “cut back into traffic, across the inside lane, cutting people off. [He] got to the outside lane, and approached [Whitesides] from the rear at a high rate of speed.” Gray then rear-ended Whitesides’s truck. When White-sides approached Gray to confront him, Gray’s radio was playing “very loud” and Gray was “not acting normal, at all.”

The police arrived and, noticing Gray’s constricted pupils and the smell of alcohol on his breath, conducted field sobriety tests. Gray failed the tests and was arrested for driving while intoxicated. Gray told the police that he was taking antidepressant medication.

II. PROCEDURAL HISTORY

The State charged Gray by information with misdemeanor DWI, alleging that he “did then and there unlawfully while intoxicated, namely not having the normal use of his mental and physical faculties by the reason of the introduction of ALCOHOL into his body, operate a motor vehicle in a public place.”

Gray’s father testified at trial that Gray had been undergoing treatment for psychological problems for the last three years. He had been prescribed four medications — Respiratol, Zoloft, Klonopin, and Depical — during the general time period of the accident, but on that day he was taking two or three of them. His father indicated that the medications caused “disorientation” and “dizziness.” Gray’s father also testified that Gray was not drinking any alcohol that day — -“he couldn’t have.”

Gray’s stepmother testified that Gray was on three medications at the time of the accident. She also said that he had just started taking Depical three days before the incident and that Depical made him very disoriented.

The State’s chemist testified that the drugs were anti-depressants that have a depressant effect on the central nervous system. Alcohol had the same effect. “And, when you add one depressant medication to another depressant medication, it can have, what’s called, an ‘addictive [sic ] effect.’ Sometimes, what’s described as a ‘synergistic effect.’ Where the two medications interact in an inappropriate way and accelerate the action of one medication.” She said that effect could manifest itself even if the person had only a small amount of alcohol.

The court’s proposed jury charge stated as follows:

You are further instructed that if a Defendant indulges in the use of a drug, to wit, Respiratol, Zoloft, Klonopin, and/or Depical, 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 of the charge instructed the jury to convict if it found that Gray was driving while intoxicated “by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical.”

Gray objected to the charge on the grounds that it did not follow the State’s information. The prosecutor responded that the charge was appropriate under Sutton v. State. The judge overruled Gray’s objection.

The jury found Gray guilty of misdemeanor DWI, and the judge assessed punishment at 180 days in the Harris County Jail, suspended for one year.

III. ON APPEAL

On appeal, Gray argued that the trial judge erred in charging the jury on the “synergistic effect” of drugs and alcohol because (1) it was not part of the law applicable to the case, (2) it was a comment on the weight of the evidence, (3) it was misleading and confusing, and (4) Gray was not prosecuted under a combination theory. The Court of Appeals disagreed. It concluded, in relevant part, that the charge incorporated the law applicable to the case, relying on our plurality opinion in Sutton.

Gray petitioned this Court for discretionary review on two grounds. We granted the second ground, which contends that the Court of Appeals erred in holding that the instruction constituted the law applicable to the case when Gray was not charged with intoxication by a combination of alcohol and drugs.

IV. ANALYSIS

Our Legislature has made clear that a trial judge’s charge to the jury must set forth “the law applicable to the case.” Relying on that statute, we have held that “[a] trial court is required to fully instruct the jury on the law applicable to the case and to apply that law to the facts presented.” It is not enough for the charge to merely incorporate the allegation in the charging instrument. Instead, it must also apply the law to the facts adduced at trial. This is because “[t]he jury must be instructed ‘under what circumstances they should convict, or under what circumstances they should acquit’.” Jury charges which fail to apply the law to the facts adduced at trial are erroneous.

This case involves a specific kind of jury charge known as the “synergistic effect” charge. We begin with the background of this charge.

A. The Synergistic Effect Charge

Originally, our DWI statute did not define “intoxication.” In Heard v. State, we addressed a synergistic effect charge under that statute. (Although Heard was decided after the statute had been changed, the defendant’s offense had occurred under the previous version of the statute.) There, the information alleged driving under the influence of liquor. During trial, the defense presented evidence that the defendant had been taking several medications at the time of the offense. The evidence showed that the medications combined with alcohol “might cause an individual to lose his or her mental alertness quicker than if he or she was drinking only alcohol.”

The jury charge instructed the jury that “if a Defendant indulges in the use of drugs to such an extent that he thereby makes himself more susceptible to the influence of intoxicating liquor than he otherwise would have been and by reason thereof becomes intoxicated from the recent use of intoxicating liquor, he would be in the same position as though his intoxication was produced by the use of intoxicating liquor alone.” The application paragraph of the charge then told the jury it could convict if it found that the defendant was “under the influence of intoxicating liquor, either alone or in combination with drugs.”

We found this charge to be proper because it applied the law to the facts of the case. We explained that the “combination of liquor and drugs which would make an individual more susceptible to the influence of the liquor is in effect equivalent to intoxication by liquor alone.”

The 68th Legislature amended the DWI statute, effective January 1, 1984. After that amendment, the statute defined “intoxicated” as, among other things, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body.”

We addressed the effect of this statutory change on DWI charging instruments in Garcia v. State. There, the information charged the defendant with driving while intoxicated. It did not specify whether the intoxication was a result of alcohol, drugs, or a combination of both. As a result, the defendant moved to quash. The trial court denied the motion, but the Court of Appeals reversed, holding that the motion should have been granted.

We agreed with the Court of Appeals. We concluded that, to provide sufficient notice to a defendant, a charging instrument alleging intoxication under the new DWI statute had to allege the intoxicant. Having reached that conclusion, we then added that, since the statute defined different methods of becoming intoxicated, “the type of intoxicant used ... becomes an element of the offense and critically necessary to the State’s proof.” In the following and final paragraph of the opinion, we returned to the notice rationale, concluding that the defendant in Garcia had been denied notice and that the trial court erred in denying his motion to quash.

Our holding in Garcia seemed to call Heard into question. In Heard, we had concluded that a synergistic effect jury charge was permissible even if a combination theory had not been alleged in the charging instrument. But at the time of Heard, the DWI statute did not define intoxication, and the State was not required to allege the intoxicant in the charging instrument to provide the defendant notice. Moreover, at the time of Heard, the intoxicant was not an element of the offense. Now, under Garcia, the State was required to allege the intoxicant in its charging instrument both for notice and because the intoxicant was an element of the offense. And the new statute specifically put forth the option of alleging “a combination” theory of intoxication. Under this new statute and these new pleading requirements, could a jury still be charged on the synergistic effect of more than one intoxicant if the State had not alleged a “combination” theory in its indictment?

We were faced with that question in Sutton v. State, and the Court was unable to reach a majority. In that case, the information charged the defendant with driving while intoxicated due to alcohol. At trial, the defendant testified that he had taken two pills of a prescription medication which, when mixed with two beers, put him in a “precarious situation.” The defense expert testified that the prescription medication could cause a person to appear intoxicated and that alcohol would enhance the effect of the drug. The judge instructed the jury on the synergistic effect of the prescription medication and alcohol, permitting the jury to convict if it found that “the defendant was intoxicated by reason of the introduction of alcohol into his body, either alone or in combination with Klonopin.”

A four-judge plurality concluded that these facts were identical to Heard and that our opinion in Heard was dispositive. The plurality stated that the jury charge did not expand on the allegations in the information; rather, it'“allowed conviction only if the jury found that [the defendant] had been intoxicated with alcohol, either alone or in combination with a drug that made him more susceptible to the alcohol. In either case, the jury had to find that [the defendant] had been intoxicated with alcohol, not with the drug.” The plurality also noted that “[o]nce [the defendant] introduced this evidence, the trial court was obligated to instruct the jury on the law as explicated in Heard.” The plurality did not discuss the fact that the DWI statute had changed since Heard. And it concluded that Garcia was irrelevant because Garcia had involved a motion to quash, and Sutton had not filed such a motion.

Four judges dissented. In his dissenting opinion, Judge Maloney argued that the plurality failed to “account for changes in the controlling statute” and that the plurality’s “reasoning might have made sense at the time of the Court’s opinion in Heard since at that time there was no separate statutory category for a combination of drugs and alcohol, [but] it is not consistent with the current version of the statute.”

The law was still in this uneasy state when we decided Rodriguez v. State several years ago. There, the indictment alleged that the defendant drove while intoxicated due to alcohol. At trial, defense evidence showed that the defendant had been taking Contac, an over-the-counter medication, which made him drowsy. The State’s expert then testified to the effects of Contac as well as the effects of mixing Contac with alcohol. The charge defined “intoxicated” as not having the normal use of mental or physical faculties “by reason of the introduction of alcohol, a drug, or a combination of both of those substances, into the body.” The application paragraph of the charge then permitted the jury to convict if it found that the defendant was intoxicated “by the reason of the introduction of a combination of unknown drugs and alcohol into his body.”

We recognized that this jury charge was a far cry from the ones in Heard and Sutton. In those cases, the charge allowed conviction only if the jury found that the defendant had been intoxicated with alcohol, either alone or in combination with a drug that made him more susceptible to the alcohol. But in Rodriguez, the charge allowed the jury to convict if it found the defendant was intoxicated by a combination of unknown drugs and alcohol. There was “no ‘additional susceptibility’ theory put to the jury.” It therefore “improperly expanded on the allegations set forth in the information, and authorized a conviction on a theory not alleged in the charging instrument.”

We noted in Rodriguez that, “despite its reliance on Heard, the [Sutton] plurality placed no significance on the fact that the type of intoxicant was not an element of the offense under the statute in Heard but was an element of the offense under the statute.” We resolved Rodriguez without having to address that issue because “regardless of one’s view of the relevance of Garcia to this issue, the jury charge in this case falls short of the requirement established in Sutton.”

B. Application

In this case, the State alleged that Gray was under the influence of alcohol while driving, and Gray presented evidence that he was under the influence of anti-depressants at the time of the offense. The trial judge’s charge to the jury incorporated both the State’s allegation and the evidence presented at trial by instructing the jury that it should convict if it found that Gray had indulged in the drugs “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.” Under our caselaw, this charge instructed the jury on the law applicable to the case and applied that law to the facts presented. So this was a standard “synergistic effect,” and therefore valid, jury charge.

Gray disagrees, arguing that this charge expanded on the scope of the State’s information. He says that according to Garcia, the intoxicant is an element of the offense of DWI. Since the DWI statute under which Gray was charged lists six possible (though overlapping) intoxicants — “alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances, or any other substance” — Gray argues that the State must allege which intoxicant and prove that same intoxicant. By allowing the State to allege “alcohol” but prove “combination,” Gray says, the State is permitted to expand upon the theory alleged in the charging instrument, violating due process.

The State responds that this charge was virtually identical to the one given in Sutton. It also contends that Garcia is poorly reasoned and should be overruled. Gray replies that it is actually Sutton that is poorly reasoned.

1. Intoxicant as Element of Offense

We begin with Garcia’s statement that the intoxicant is an element of the offense of DWI.

Due process provides that no person may be convicted of a criminal offense unless every element of the offense is proved beyond a reasonable doubt. Our Penal Code defines the elements of the offense to be the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. As a practical matter, we define the elements of individual offenses on a case-by-case basis. Under the previous statute, V.A.T.S. Art. 6701 i-1, we held that the elements of misdemeanor DWI were that: (1) a person (2) drives or operates (3) a motor vehicle (4) in a public place (5) while intoxicated. The current statute, § 49.04(a), says essentially the same thing as the previous one, and the elements of the offense are: (a) a person (b) is intoxicated (c) while operating (d) a motor vehicle (e) in a public place.

In Garcia, we said that an additional element was the type of intoxicant. We made this statement even though- the disputed issue in the case concerned notice. As a result, the statement was dicta, unnecessary to the resolution of the case. Moreover, we did not cite any authority for this conclusion, nor did we explain it. There are several problems with the statement.

First, it contradicts the statutory definitions of what constitutes an element of the offense. The intoxicant is not the forbidden conduct, the required culpability, any required result, or the negation of any exception to the offense. The mere fact that the DWI statute separately defines intoxication does not automatically elevate the intoxicant to the status of an element of the offense.

Second, Garcia’s dicta conflicts with our caselaw regarding elements of other offenses. In Ex parte Luna, we addressed a similar issue with regard to the theft statute. There we concluded that the definitions of “unlawfully” in § 31.03 were not essential elements of theft, but were evi-dentiary matters that need not be alleged in order to sufficiently charge the offense of theft. Like the theft statute, the DWI statute defines “intoxicated,” but that does not mean that the various intoxicants are elements of the offense. Instead, they are descriptive terms.

Third, making the intoxicant an element of the offense constitutes bad public policy. As the State points out, when we concluded that the intoxicant was an element of the offense, the intent of the statute was thwarted, and trials degenerated into ones like this one, where the defense is essentially “Yes, I was intoxicated, but you alleged the wrong intoxicant, therefore I am entitled to an acquittal.” We agree with the State that permitting defendants to “secure an acquittal merely by proving an alternative intoxicant” constitutes “an abuse of the system ... contrary to the plain meaning of the DWI statute, which focuses on the acts of the defendant while intoxicated rather than the act of becoming intoxicated itself.”

We conclude that the substance that causes intoxication is not an element of the offense. It is not the forbidden conduct, the required culpability, any required result, or the negation of any exception to the offense. Instead, it is an evidentiary matter. We disavow the dicta in Garcia to the contrary.

2. Sutton v. State

Doing away with Garcia’s element-of-the-offense language disposes of Gray’s claim that due process was violated due to the State alleging one offense and convicting on another. But it does not refute Gray’s argument entirely. We still must address whether this jury charge expanded on the allegations in the State’s charging instrument. For this, we return to Sutton.

In Sutton, the information alleged alcohol as the intoxicant, and the evidence at trial showed drugs and alcohol. The judge instructed the jury on the synergistic effect of prescription medication and alcohol. The plurality said that the jury charge did not expand on the allegations in the information; rather, it “allowed conviction only if the jury found that [the defendant] had been intoxicated with alcohol, either alone or in combination with a drug that made him more susceptible to the alcohol. In either case, the jury had to find that [the defendant] had been intoxicated with alcohol, not with the drug.” The charge in this case, being nearly identical to the one in Sutton, should be valid, unless there is some reason that the Sutton plurality erred.

Gray argues that Sutton is “flat-out wrong” because the plurality failed “to come to grips with the fact” that the statute changed after Heard was decided. It is true that the DWI statute was amended after Heard. But we believe the Sutton plurality was still correct.

Gray argues that if the statute provides for six different intoxicants, then the jury charge must include only the intoxicant alleged in the State’s charging instrument, otherwise the jury charge expands on the scope of the State’s allegations. But there are two flaws in this position. First, the jury charge in this case did not permit the jury to convict on a completely separate intoxicant. Instead, it permitted conviction if the consumption of one intoxicant made Gray more susceptible, and therefore intoxicated, by the charged intoxicant. So even if Gray’s premise were correct, this particular jury charge would be valid because it still required the jury to find that Gray was intoxicated due to alcohol, which is what the State alleged.

Second, the six possible definitions of intoxication in the statute are not mutually exclusive — indeed, they are patently overlapping. The definitions of intoxication in the DWI statute are in this way unique from other criminal statutes. An allegation of “controlled substance” overlaps with “drug” and “dangerous drug.” An allegation of “combination” overlaps with “alcohol” and “drug.” As a result, these are not really six different intoxicants.

Here, the State alleged intoxication by alcohol, and the jury charge permitted finding intoxication by alcohol if the defendant was more susceptible to the alcohol due to drugs. This charge did not permit conviction on a theory unalleged in the charging instrument. This is still the same theory of committing DWI — the “loss of faculties” theory.

Gray also argues that the Court of Appeals’ opinion, and therefore, Sutton, conflicts with Rodriguez. We disagree. As explained above, the jury charge in Rodriguez was quite different from the one in Sutton. The charge in Rodriguez did not put forth an “additional susceptibility theory” to the jury. It therefore “improperly expanded on the allegations set forth in the information, and authorized a conviction on a theory not alleged in the charging instrument.” The same is not true here or in Sutton. In both this case and in Sutton, the charge permitted conviction only if the drugs made the defendant more susceptible to the alcohol. Both this charge and the one in Sutton still required intoxication due to alcohol.

We conclude that the Sutton plurality was correct to uphold the synergistic effect jury charge, even though the DWI statute changed after Heard. The charge in this case was essentially identical to the one in Sutton and different from the one in Rodriguez. It permitted the jury to convict if Gray’s drug use made him more susceptible to alcohol, but it still required intoxication due to alcohol. Therefore, it did not expand on the allegations in the charging instrument, and it properly applied the law to the facts of the case.

Judge Cochran contends in dissent that we should dispense with synergistic jury charges entirely, but we do not believe her arguments rise to our high standard for overruling precedent. Additionally, the crux of her argument is really that this charge was a comment on the weight of the evidence. But that issue was presented in Gray’s first ground for review, which we refused. We do not address that claim today. Judge Meyers argues that this charge was erroneous because it permitted the jury to convict Gray on an allegation not within the charging instrument. But as discussed above, this charge still required the jury to find that Gray was intoxicated by alcohol.

Finally, the State argues that Garcia’s notice holding should be overruled. We have already concluded that the charge in this case was valid. Reaching out to address the validity of Garcia’s notice holding would be dicta. And we have rejected this argument before. We decline to consider it today.

V. JUDGMENT

We affirm the judgment of the Court of Appeals.

MEYERS, J., filed a dissenting opinion.

PRICE and JOHNSON, JJ., concurred in the result.

COCHRAN, J., filed a dissenting opinion in which MEYERS, J., joined.

MEYERS, J.,

dissenting.

I join Judge Cochran’s dissenting opinion and add these comments regarding the jury charge in this case. A good method for determining whether a charge is correct is to consider the factors enumerated in Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), in describing a hypothetically correct jury charge. Under the sufficiency analysis in Malik, we stated that the “sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. at 240.

The information in this case alleged only intoxication by alcohol. However, the application paragraph instructed the jury to convict the defendant if it found “intoxication by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klono-pin and/or Depical.” This application paragraph was not authorized by the charging instrument. The best that I can discern from the majority opinion is that the trial court can now expand the application paragraph to include additional theories of liability and incorporate evidence on how the defendant became intoxicated even though that intoxicant was not pled in the information. I am afraid that I have not come across this authority before. Because this is error in the charge and Appellant timely objected, I would hold that the error was not harmless and reversal is required. See Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985).

For these reasons, I respectfully dissent.

COCHRAN, J.,

joined by MEYERS, J., dissenting.

I respectfully dissent. I would overrule both Garcia v. State and Sutton v. State, reverse the court of appeals’ judgment, and remand this case to that court for a harm analysis because the trial court’s application paragraph was technically improper and the “synergistic effect” jury instruction is not part of the law applicable in a DWI case.

I.

The evidence at trial showed that the 17-year-old appellant was arrested for DWI after he rear-ended another driver’s truck with his blue Lexus. When a police officer arrived at the accident scene, he noticed that appellant smelled of alcohol, had constricted pupils, and did not appear to have the normal use of his mental or physical faculties. The officer administered an HGN test which indicated intoxication, a portable breath test which indicated that appellant had alcohol in his system, and field sobriety tests which appellant could not perform successfully. Appellant told the officer that he was taking anti-depressant medications, including Respiratol, Zoloft, Klonopin, and Depical. According to appellant’s father, these medications caused “disorientation” and “dizziness.” Appellant’s stepmother said that one of the drugs, Depical, caused appellant to become very disoriented. In rebuttal, the State called a chemist who testified that these anti-depressant medications could accelerate the action of alcohol, causing mental and physical impairment in a driver with only a small amount of alcohol.

As a part of the jury charge in this case, the trial judge included the following general instruction:

You are further instructed that if a Defendant indulges in the use of a drug, to wit, Respiratol, Zoloft, Klonopin and/or Depical, 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.

Although appellant was charged only with intoxication by means of alcohol, the trial judge also included, in the application paragraph of the charge, an instruction that the jury could convict appellant of DWI if it found that he was intoxicated “by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical.”

During closing argument, the defense attorney agreed that appellant was “obviously” impaired at the time he rear-ended the other driver’s truck. His defense was that this mental and physical impairment was not caused by the alcohol appellant had consumed, but rather by the antidepressant drugs he was taking. The jury, by its verdict, rejected this defense and convicted appellant of DWI.

The issue before us is whether the trial court’s “synergistic effect” jury instruction and its application paragraph, permitting conviction upon proof of intoxication by means of a combination of alcohol and drugs, were proper when appellant was charged only with intoxication by means of alcohol.

II.

Appellant argues that the trial court erred in charging the jury on intoxication by means of a combination of drugs as well as by means of alcohol alone. According to appellant, the application paragraph broadened the allegations in the information and permitted conviction for DWI on a basis which was not specifically pleaded.

I think that appellant is technically correct. However, I would take this opportunity to overrule Garcia which held that, in a DWI prosecution, “the type of intoxicant used, i.e., alcohol, a controlled substance, a drug, or a combination of two or more of these substances, becomes an element of the offense and critically necessary to the State’s proof.” Garcia is no longer good law because the DWI statute has been amended so that the type of intoxicant that a person consumed to become physically or mentally impaired is of no legal significance.

When Garcia was decided in 1988, there were only three possible “intoxicants” that were subject to prosecution under the DWI statute: alcohol, a controlled substance, or a drug. A driver who was impaired because of the ingestion of any one of these three substances, either alone or in combination, could be convicted of DWI. In 1993, the Legislature amended the definition of “intoxicated” to include “alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance.,” Any other substance at all. Under current law, if a person eats too many M & Ms either alone or in combination with alcohol, drugs, water, or whatever such that his mental and physical faculties are impaired, he may be prosecuted for DWI. However, “eating M & Ms” is clearly not an element of the offense of DWI. “Intoxicated” is an element of DWI, and it is a physical state of being, regardless of the specific substance which caused the impairment.

The purpose of DWI laws, both here in Texas and across the nation, is to prevent and punish the “carnage caused by drunk drivers.” These laws are not focused upon the type of substance that caused the driver to become “drunk” and then get behind the wheel of a car. The law does not differentiate between the drunk driver who was intoxicated because he consumed alcohol, or injected heroin, or sniffed glue, or took prescription medicine. It is the act of driving while one’s mental or physical faculties are impaired that is inherently dangerous and the target of our DWI law.

This case is a prime example of the Dickensian hair-splitting that we have allowed ourselves to fall into. Appellant makes no claim that he was not intoxicated at the time he rear-ended a fellow driver. He admits that he was a physically and mentally impaired driver. His contention is simply that he was not intoxicated because of the alcohol he drank; instead, he was intoxicated because of the anti-depressants he was taking. This is a “defense” that is condoned, if not encouraged, by our decision in Garcia which requires the State to allege the precise substance that it thinks caused an impaired driver’s intoxication, and then permits that driver to defend against the charge by claiming that he was intoxicated on some other substance.

Nonetheless, the State, in this case did allege only alcohol as the means of intoxication in its information. I certainly cannot fault the State for doing so, as it was conscientiously following the dictates set down , by this Court in Garcia. But our law is also clear that if the State alleges a specific intoxicant, such as alcohol, it must prove what it pleads because that substance is descriptive of an element. Generally, when an element or term is defined by statute, such as the element “intoxicated,” it need not be further alleged in the indictment. The specific name of the substance that caused a person’s intoxicated state is not an element of the offense of DWI, nor is there now a discrete statutory list of specific intoxicating substances that the State must rely upon in obtaining a DWI conviction. Thus, the name of the substance is an evidentiary matter, not an element of the offense or a specifically defined statutory manner and means of committing the offense of DWI.

The defendant is, of course, entitled to due process notice of the charge against him, but as we recently held in Kellar v. State> such notice need not always come from the face of the indictment or information. It may come as well from formal or informal discovery procedures. Furthermore, in ' many instances, the defendant may be the only person who has knowledge of whether he consumed substances in addition to those alleged by the State. In any event, it should not be a defense to DWI that the defendant was intoxicated on one substance instead of another substance.

Although I reluctantly conclude that, based upon our prior law, the trial court technically erred in expanding the application paragraph to include the potential for finding appellant guilty of DWI based upon his intoxication due to substances other than alcohol, I would take the opportunity to overrule Garcia and hold that henceforth the State need allege, in its charging instrument, only that the defendant drove or operated a motor vehicle in a public place while intoxicated. It need not allege any specific substance that caused the defendant to become intoxicated, but if it does do so, it must prove that the specifically alleged substance was the cause of the intoxication.

III.

I also agree with appellant that the “synergistic effect” instruction given in this case is not part of the “law” applicable to a criminal case and should not be given as a jury instruction. The attorneys may argue this very statement, in these very words, as a common sense proposition if it is based upon the evidence presented. However, the judge may not set out in his jury instructions statements that are subject to proof by evidence, but which do not form part of the statutory law of this state. Once again, the trial judge, as well as the State, acted in complete good faith in following this Court’s prior decisions which had approved this very instruction. I cannot fault him at all, and I cannot fault the majority for following precedent, but I think that we should take the opportunity to correct our own past mistakes.

We recently held that “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.” And we based that holding on our discussion in Browning v. State:

In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference. In fact neither statute nor caselaw provides such a “presumption” at the trial level. Instructing the jury that it does constitutes, in effect, a comment on the weight of the evidence. We do not hold that the jury may not make such an inference, nor that an appellate court in reviewing the sufficiency of the evidence may not assume that the jury made such a reasonable inference. The error lies in instructing the jury that they may apply such an inference.

The “synergistic effect” instruction in this case is just like the instructions this Court condemned in Brown and Browning. It is-not part of the law applicable to the case, and it is a comment on the weight of the evidence. I think that it is error.

Let us look at the logic involved. Do trial judges always give this jury instruction as part of the law applicable to a DWI case? No. This instruction has nothing to do with the statutes relating to intoxication or driving while intoxicated. It has to do with the specific evidence admitted at trial.

Suppose the defendant testified that he ate three M & Ms with his two glasses of beer. Would the trial judge then be required or permitted to give this same instruction but substitute the phrase “M & Ms” for the phrase “Respiratol, Zoloft, Klonopin, and/or Depical”? No. Would the attorneys be able to argue “synergistic effect”? No. There is no evidence that M & Ms cause a “synergistic effect” when combined with alcohol. It takes scientific evidence to support a possible conclusion that X substance, when combined with Y substance, causes a synergistic effect upon the body, making the effect of Y substance more pronounced than it otherwise would have been.

Suppose an expert witness testifies, as the State’s chemist did in this case, that Respiratol (or M & Ms or whatever), when combined with alcohol, creates a synergistic effect. Now there is evidence in the record that supports a possible inference that the defendant experienced greater effects from the alcohol that he consumed than he would have otherwise. Does that mean when any expert testifies to a scientific “fact” or “opinion” that the trial judge is required or permitted to instruct the jury that the expert’s testimony is the law applicable to the case? No. If the Defendant should call an expert who testifies that Respiratol has a reverse synergistic effect — i.e., a person who takes Respiratol is less susceptible to the effects of alcohol than one who is not taking Respiratol— should the trial judge instruct the jury in the converse? No. What is the logic of singling out one portion of one witness’s testimony and instructing the jury that a specific portion of that witness’s testimony is “the law applicable to the case”? I see no logic in this position, but there is considerable mischief lurking here.

Why, then, do we condone it? It’s been done before. In Sutton v. State, a plurality of this Court said the trial court did not err in giving this “synergistic effect” instruction because ... it had been done before in Heard v. State. And in Heard v. State, this Court held that the instruction was proper because .... it had been done before in Kessler v. State. , But, in fact, it had not been done before in Kes-sler. Instead, the DWI defendant in that case had asked for the reverse instruction: “that if she was intoxicated on the night in question from the combined use of amytal and whiskey to acquit her.” This Court appropriately rejected her claim for such an instruction, reasoning that

If she indulged in the use of amytal to such an extent that she thereby made herself more susceptible to the influence of intoxicating liquor than she otherwise would have been and by reason thereof became intoxicated from the recent use of ardent spirits, she would be in the same position as though her intoxication was produced by the use of whisky alone. A person who gets himself in a condition whereby he may become intoxicated from a lesser quantity of whisky than it would ordinarily take to produce intoxication is nevertheless intoxicated from the use of whisky.
We note, however, that the court in his main charge instructed the jury that if they believed from the evidence that appellant was drunk from the use of amytal, or if they had a reasonable doubt thereof, to acquit her. This was all she was entitled to.

Somehow, in the forty-five years between Kessler and Heard, this Court’s discussion and logical reasoning in the former case became transmogrified into a legal jury instruction in the latter case. But we should not continue to accept, in perpetuity, the illogical proposition that a snippet of an expert witness’s testimony — or the common-sense conclusion that can be drawn from that testimony — becomes the “law applicable to the case” simply because one case went wrong a long time ago.

We recently explained in Brown that under our Texas adversarial system, “the judge is a neutral arbiter between the advocates; he is the instructor in the law to the jury.” But he cannot comment on the weight of the evidence, or instruct the jury on conclusions that they may draw from the evidence, regardless of how eom-mon-sensical or logically obvious those conclusions might be. That is the job of the jurors, aided by the testimony of the witnesses, and the arguments of the attorneys.

Therefore, I would overrule Sutton and hold that the trial court, although acting in good faith reliance upon our prior precedent, erred in this case in giving a jury instruction that is not part of the statutory law applicable to DWI. Although the attorneys for the State and defense may certainly argue the logical proposition of a “synergistic effect” (or lack thereof) of various substances upon one’s mental or physical faculties, a trial judge errs by instructing the jury on the significance of any witness’s opinion testimony as if that testimony were the law applicable to the case.

I would remand this case to the court of appeals to assess the harmfulness of the improper jury instruction and application paragraph.

      . 899 S.W.2d 682 (Tex.Crim.App.1995) (plurality op.).

      . Gray v. State, No. 01-02-00602-CR, 2003 WL 21357335 (Tex.App.-Houston [1st], delivered June 12, 2003) (not designated for publication).

      . Id., slip op. at 4 (citing Sutton, 899 S.W.2d at 685).

      . Tex.Code Crim. Proc. art. 36.14 (Vernon Supp.2004).

      . Jackson v. State, 633 S.W.2d 897, 899 (Tex.Crim.App.1982); Rider v. State, 567 S.W.2d 192, 195 (Tex.Crim.App.1978).

      . Ex parte Chandler, 719 S.W.2d 602, 606 (Tex.Crim.App.1986).

      . Perez v. State, 537 S.W.2d 455, 456 (Tex.Crim.App.1976); Harris v. State, 522 S.W.2d 199, 200 (Tex.Crim.App.1975).

      . 665 S.W.2d 488 (Tex.Crim.App.1984).

      . Id. at 489.

      . Id.

      . Id.

      . Id. at 490.

      . Acts 1983, 68th Leg., R.S., ch. 303, p. 1574, § 3; see also Forte v. State, 686 S.W.2d 744, 746 (Tex.App.-Fort Worth 1985), aff'd in part and rev’d in part, 707 S.W.2d 89 (Tex.Crim.App.1986).

      . See former Art. 6701 /-1(a)(2)(A). The statute was amended again in 1993 to add “or any other substance.” Act of June 19, 1993, 63rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3699. That is how today's version of the statute, Tex. Pen.Code § 49.01(2)(A), reads.

      . 747 S.W.2d 379 (Tex.Crim.App.1988).

      . Garcia v. State, 720 S.W.2d 655 (Tex.App.San Antonio 1986), aff'd, 747 S.W.2d at 381.

      . 747 S.W.2d at 381.

      . Id.

      . Id.

      . 899 S.W.2d 682.

      . Id. at 683-84.

      . Id. at 684.

      . Id.

      . Id. at 685.

      . Id.

        . Id.

      . Id.

      . Id. at 685 (Maloney, J., dissenting).

      . Id. at 688.

      . 18 S.W.3d 228 (Tex.Crim.App.2000).

      . Id. at 229.

      . Id. at 230.

      . Id. at 232.

      . Id.

        .Id. at 231.

      . Id. at 232.

      . See Jackson, 633 S.W.2d at 899; Rider, 567 S.W.2d at 195.

      . See Tex. Pen.Code § 49.01(2)(A).

      . Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

      . Tex. Pen.Code § 1.07(a)(22).

      . Solis v. State, 787 S.W.2d 388, 390 (Tex.Crim.App.1990), overruled on other grounds, State v. Carter, 810 S.W.2d 197, 200 (Tex.Crim.App.1991).

      . See Tex. Pen.Code § 1.07(a)(22).

      . 784 S.W.2d 369 (Tex.Crim.App.1990).

      . Id. at 371; see also Flowers v. State, 815 S.W.2d 724, 727 (Tex.Crim.App.1991).

      . 899 S.W.2d at 685.

      . See Carter, 810 S.W.2d at 200.

      .18 S.W.3d at 232.

      . Paulson v. State, 28 S.W.3d 570, 571 (Tex.Crim.App.2000).

      . Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Crim.App.1994); Carter, 810 S.W.2d at 199-200.

      . 747 S.W.2d 379 (Tex.Crim.App.1988).

      . 899 S.W.2d 682 (Tex.Crim.App.1995) (plurality op.).

      . Garcia, 747 S.W.2d at 381.

      . Act of June 19, 1993, 63rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3699. See Tex.Code Crim. Proc. art. 49.01(2)(A).

      . South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (“[t]he situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy”).

      . See Burrell v. State, 526 S.W.2d 799, 802 (Tex.Crim.App.1975) ("allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded ... [except when] the unnecessary matter is descriptive of that which is legally essential to charge a crime”).

      . Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981) (op. on reh’g).

      . See id.

      . 108 S.W.3d 311, 313 (Tex.Crim.App.2003) (stating that "it is unreasonable to require that the indictment contain more than the essential elements of the offense.... If a defendant files a motion alleging lack of notice to defend and asking for specific information concerning the alleged offense, the trial court should determine whether, based on reasonable, common sense evaluation of the charges, such notice is necessary to prepare a defense. If it is, the court should order the State to provide reasonable notice, preferably in a written document filed with the court ... or orally on the record”).

        .See, e.g., State v. Cordell, 34 S.W.3d 719, 721-22 (Tex.App.-Fort Worth 2000, pet. ref'd) (reversing trial court’s order quashing information for failing to allege which specific substance allegedly caused defendant’s intoxication in DWI case; noting that, without such specificity, "a defendant may be deprived of a particular theory of defense, e.g., 1 ingested alcohol and heroin, not alcohol and amphetamine, as alleged in the information,’ ” but a defendant is not precluded from presenting a defense that she was not intoxicated on any substance).

      . Brown v. State, 122 S.W.3d 794, 799 (Tex.Crim.App.2003). In Brown, we explained:
      both appellate and trial courts may measure the sufficiency of evidence by resort to a judicial presumption, but the jury cannot be told of that presumption or rule. For example, the presumption of an intent to commit theft arises from the nonconsensual nighttime entry of a home or building. But an instruction to the jury on this legal "presumption” is an improper comment on the weight of the evidence.

        Id. at 800 (footnotes omitted).

      . Browning v. State, 720 S.W.2d 504, 507 (Tex.Crim.App.1986).

      . Sutton, 899 S.W.2d at 684 (citing Heard v. State, 665 S.W.2d 488, 490 (Tex.Crim.App. 1984)).

      . Heard, 665 S.W.2d at 489-90 (citing Kessler v. State, 136 Tex.Crim. 340, 125 S.W.2d 308, 309 (1939)).

      . Kessler, 125 S.W.2d at 309.

      . Id. At the time Kessler was decided, the general DWI statute, article 802 of the 1923 Penal Code, covered only driving “under the influence of intoxicating liquor.”

      . 122 S.W.3d at 797.


source: Caselaw Access Project

author: Justice BARBARA ROSENBERG

license: Public Domain

text:
    Larry FULGHAM and Debra Fulgham, Appellants, v. FFE TRANSPORTATION SERVICES, INC., Appellee.
    No. 05-01-01040-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 7, 2002.
    Rehearing Overruled Oct. 7, 2002.

      Kenneth W. Fuqua, Fuqua, Hudnall & Gappelberg, L.L.P., Dallas, for appellants.
    David L. Sargent, Monte K. Hurst, Thad D. Spalding, Hermes, Sargent & Bates, L.L.P., Dallas, for
    Before Justices JAMES, FARRIS, and ROSENBERG.

      . The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.

      . The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.

   OPINION

Opinion by

Justice BARBARA ROSENBERG

(Assigned).

In four issues, Larry and Debra Fulg-ham (the Fulghams) appeal a directed verdict on their negligence and product liability claims against FFE Transportation Services, Inc. (FFE). Because expert testimony is not necessary to establish negligence and there is some evidence of the elements of duty, breach, and causation and because there is some evidence of a lease between FFE and Larry, we reverse the trial court’s judgment and remand both claims for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Larry Fulgham is a long haul trucker. Larry and FFE had an agreement whereby Larry furnished his tractor to transport products in FFE’s trailers. The tractor and the trailer were connected by means of the trailer’s kingpin that locked into the tractor’s fifth wheel. The kingpin was part of the upper coupler assembly that was bolted to the base rail of the trailer. In March 1998, Larry was driving a load for FFE through Kentucky. As he exited an interstate highway on a curved ramp, the upper coupler assembly broke loose from the trailer, causing the trailer to break loose from the tractor and overturn. Larry lost control of the tractor, and it overturned, too, injuring him. The Fulg-hams’ theory of the accident was that the bolts holding the upper coupler assembly to the base rail of the trailer were rusty and broke.

The Fulghams sued FFE for negligence, alleging that FFE failed to timely and properly inspect, maintain, and service the trailer, particularly the upper coupler assembly, and failed to warn Larry of the unsafe condition of the trailer, particularly the upper coupler assembly. The Fulg-hams also alleged that the trader was defective because the bolts and plates anchoring the upper coupler assembly to the trailer were weak due to rust and other deterioration and that FFE was liable for a defective product. Larry claimed damages for pain and suffering, physical impairment, and mental anguish; loss of past and future income and future earning capacity; and loss of the tractor and home due to inability to make payments from loss of income. Debra sought recovery for loss of consortium, lost wages, and loss of Larry’s household services.

This case was tried to a jury. The trial court stated that expert testimony was required to establish the standard of care. FFE moved for directed verdict on grounds that there was no evidence of duty, breach, and causation of the negligence claim, and, as to the product liability claim, there was no evidence that FFE placed the trailer into the stream of commerce. The trial court granted the motion and entered a take nothing judgment against the Fulghams. This appeal followed.

STANDARD OF REVIEW

In reviewing the granting of a directed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam). We consider all the evidence in a light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. Id. If there is any conflicting evidence of probative value on a theory of recovery, a directed verdict is improper, and the case must be reversed and remanded for jury determination of that issue. Id.

Negligence

In their second issue, the Fulghams contend the trial court erred in granting a directed verdict on their negligence claim. Specifically, the Fulghams contend the trial court erred in finding that expert testimony was required to establish FFE’s duty and that there was no evidence on the challenged elements of their claim.

Applicable Law

To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff and breached that duty, and (2) damages proximately resulting from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Whether a legal duty exists is a threshold question of law for the court to decide from the facts surrounding the occurrence in question. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). One who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other’s person or property will not be injured thereby. Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 933 (Tex.App.-San Antonio 1989, writ denied) (citing Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976) and Restatement (Second) of Torts § 323 (1965)). Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982).

The Fulghams alleged that FFE had a duty to inspect the trailer’s upper coupler assembly and sought to prove that failure to detect rusty bolts in the inspection caused the accident. The Fulghams contend that expert testimony on the duty element was not necessary because inspecting a trailer for loose bolts and rust is within the common understanding of laypersons. The Fulghams argue that this case is similar to the detection and repair of a deteriorating pipeline in Scurlock Oil Co. v. Harrell, 443 S.W.2d 334, 337 (Tex. Civ.App.-Austin 1969, writ ref'd n.r.e.). There, the court determined that because the owner of a pipeline had the duty of ordinary care to “protect people and property in the vicinity of the line from the types of harm ordinarily resulting from such line, ... it has a duty to properly install and maintain its lines and to avoid dangers from occurrences such as leaks and breaks in the line.” Id. “A pipe that has deteriorated to a point where it will no longer contain the liquid that it was meant to contain is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony.” Id. We conclude that the inspection and detection of loose and rusty bolts connecting parts of a trailer is not a “fact so peculiar to a specialized industry” and is within the experience of a layperson, like a leaking pipe. See id.; cf. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.Amarillo 1999, pet. denied) (op. on reh’g) (concluding negligence of an aircraft turbine engine mechanic requires expert testimony because “[t]he performance of mechanical work on turbine aircraft engines is not within the experience of a layman”); Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex.App.-Fort Worth 1995, no writ) (concluding aerial application of herbicide must be established by expert testimony because “[n]ot only is flying an airplane not within the realm of experience of the ordinary, prudent person or juror, ..., applying herbicide and pesticide aerially requires use of specialized equipment and techniques that are not familiar to the ordinary person”). Thus, expert testimony was not required to establish negligence.

Next, the Fulghams contend that the testimony of Bill Robinson, director of purchasing FFE’s equipment and maintaining FFE’s fleet of tractors and trailers, established FFE’s duty to inspect and detect loose and rusty bolts holding the upper coupler assembly to the trailer. Robinson testified as follows:

[Counsel]: Do you agree that as part of every 60 day inspection that the inspector is supposed to check the base rails to make sure there are no loose rivets and no loose bolts?
Robinson: Yes, they should visually check that.
[Counsel]: Should visually check to make sure there is no missing bolts?
Robinson: Yes.

Robinson further testified that the inspector should check for rust, even though the amount of rust would be minimal because the refrigerated trailer was made primarily of aluminum. When asked, “in a regular inspection, how is the inspector supposed to make sure that none of the base rails bolts are loose,” Robinson answered “visually.” The inspection specifically included the fifth wheel plate, that is, the bottom part of the upper coupler assembly. We conclude that this testimony established the duty to inspect the trailers, including the upper coupler assembly, visually for rust and for missing and loose bolts every sixty days.

Further, as to breach of the duty to inspect, the accident was investigated by Harry Hupp, a Kentucky traffic accident investigator and commercial vehicle inspector. He testified that when he arrived at the accident site, he saw broken and rusty bolts in the road. Evidence that the object of an inspection existed or might have existed at the time of the inspection creates a fact issue concerning the breach of the duty. Rudolph, 763 S.W.2d at 933; Southwestern Bell Tel. Co. v. McKinney, 699 S.W.2d 629, 634 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.). A jury could have inferred that rust was present or might have been present for more than sixty days, long enough to have been detected by a visual inspection of the trailer. We conclude Hupp’s testimony is some evidence that FFE breached its duty to inspect the bolts that attached the upper coupler assembly to the trailer and detect rusty bolts.

As to evidence of causation, Hupp testified that the accident happened because the bolts holding the upper coupler assembly had rusted, thus causing it to come loose from the trailer and flip. We conclude this is some evidence of causation.

Because we conclude that expert testimony was not necessary to establish negligence and that there was some evidence as to the duty, breach, and causation elements of the negligence claim, we conclude the trial court erred in granting a directed verdict on the negligence claim. Therefore, we sustain the Fulghams’ second point of error.

Product Liability

In their third point of error, the Fulghams contend the trial court erred in directing a verdict on their product liability claim. Specifically, the Fulghams contend that the agreement between Fulgham and FFE was a lease, although labeled an “independent contractor agreement.”

Where one is engaged in the business of introducing products into the channels of commerce, he will be subject to strict liability for physical harm caused by such products if they are unreasonably dangerous to the user or consumer whether he sells or leases his products. Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975). A “lease” is “a contract by which the rightful possessor of personal property conveys the right to use that property in exchange for consideration.” Black’s Law DictionaRY 898 (7th ed.1999). The independent contractor agreement provided that Larry would use FFE’s trailer and pay FFE a percentage of the load. Thus, the agreement provided that FFE conveyed to Larry the right to use the trailer in exchange for a percentage of the load as rent. We conclude this agreement is a lease whereby FFE introduced the trailer into the stream of commerce. Because there is some evidence that FFE leased the trailer to Larry, the trial court erred in granting a directed verdict on the product liability claim. We sustain the Fulghams’ third point of error.

CONCLUSION

Because of our disposition of the Fulg-hams’ second and third points of error, we reverse the trial court’s judgment and remand this case for further proceedings. We need not address the spoliation issue or the exclusion of expert testimony raised in the first and fourth points of error. See Tex.R.App. P. 47.

      .Fulgham also sued Wabash National Corporation, which manufactured the trailer. It settled before trial. It is not a party to this appeal.


author: Justice FITZGERALD.

text:
    Roman Dorsett BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-01653-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2004.

      Lawrence B. Mitchell, Dallas, Vicki L. Solomon, Rockwall, for Appellant.
    William T. (Bill) Hill, Jr., Karen R. Wise, Asst. Dist. Atty., Dallas, for State.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Roman Dorsett Barnes appeals his conviction for murder. A jury found appellant guilty, found the enhancement paragraph true, and assessed appellant’s punishment at confinement for ninety-nine years. In two issues, appellant asserts (1) the trial court erred by overruling his objection to the notice of the enhancement allegation and (2) the jury charge at the guilt phase was fundamentally defective. We affirm the trial court’s judgment.

NOTICE OF ENHANCEMENT ALLEGATION

In his first issue, appellant asserts the trial court erred by overruling his objection to the notice of enhancement. The State filed its notice of enhancement on October 13, 2003, and jury selection began seven days later on October 20. The punishment phase began on October 23, ten days after notice of the enhancement allegation. Appellant argues the notice was inadequate because he is entitled to ten days’ notice of the enhancement allegation. Appellant observes that under article 28.10(a) of the code of criminal procedure, a defendant is entitled to “not less than ten days ... to respond to the amended indictment or information.” Tex.Code CRim. PROC. Ann. art. 28.10(a) (Vernon 1989). Appellant acknowledges that the enhancement allegation did not have to be, and was not, alleged in the indictment, but he asserts “he should be afforded the same time frame to respond to a Motion to enhance punishment which is the ‘pleading’ equivalent to the amendment of the indictment.” However, the notice is not part of the indictment, and it is not subject to the statute’s mandatory ten-day-notice period. Ten days’ notice of the enhancement allegation is presumptively reasonable, but as this Court has stated, “we will not determine a certain time frame for timely notice....” Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.).

Accordingly, we must determine whether the notice appellant received in this case was reasonable. The Beaumont Court of Appeals has held notice of intent to enhance punishment given on a Friday before a Monday trial was unreasonable. See Sears v. State, 91 S.W.3d 451, 454 — 55 (Tex.App.-Beaumont 2002, no pet.). This Court held notice of intent to enhance punishment given the day of trial did not afford proper notice. Fairrow, 112 S.W.3d at 294 — 95. In this case, appellant received notice of the State’s intent to enhance punishment seven days before trial. Appellant stated in his argument to the trial court that the parties had presented their argument in chambers and the trial court “[felt] like we had ample notice.” The record does not show appellant presented to the trial court any argument or evidence of surprise or inadequate time to prepare to respond to the enhancement allegation. At the punishment phase, when appellant was arraigned on the enhancement allegation, appellant pleaded “true” to the allegation and did not complain that he had inadequate time to respond to the allegation. On appeal, appellant argues that the less-than-ten-days’ notice “could have affected appellant’s response to any plea bargain offer and may have affected his choice of judge or jury as the assessor of punishment.” The record does not show any plea-bargain offers were pending or that appellant sought to change his election of the jury as the punishment assessor after learning of the State’s intent to enhance his punishment.

We conclude appellant has failed to show the trial court erred in overruling appellant’s objection to the notice of enhancement. We resolve appellant’s first issue against him.

JURY CHARGE

In his second issue, appellant asserts the jury charge on self-defense is fundamentally defective. The self-defense instruction in the charge stated,

Now, if you find from the evidence beyond a reasonable doubt that on the occasion in question, the defendant, Roman Dorsett Barnes, did cause the death of Jay Jackson by shooting him with a firearm, as alleged in the indictment, but you further find from the evidence, as viewed from the standpoint of the defendant at the time, that from the words or conduct, or both of Jay Jackson, it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jay Jackson, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jay Jackson’s use or attempted use of unlawful deadly force, he shot Jay Jackson with a firearm and that a reasonable person in defendant’s situation would not have retreated, then you should acquit the defendant on the grounds of self defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self defense on said occasion and under the circumstances, then you should give the defendant the benefit of that doubt and say by your verdict not guilty.

Appellant did not object to the submission of this instruction.

Appellant argues this instruction is erroneous because it required the jurors to “find from the evidence beyond a reasonable doubt” that appellant acted in self-defense before they could acquit him on self-defense. See Tex. Pen.Code Ann. §§ 2.03, 9.02, 9.32 (Vernon 2003). Appellant misreads the instruction — it does not require the jurors to find beyond a reasonable doubt that appellant acted in self-defense to acquit. Instead, it instructs the jurors to acquit if (1) they “find from the evidence” the facts establishing self-defense or (2) they have a reasonable doubt on whether appellant acted in self-defense. This instruction properly placed the burden on appellant to produce evidence raising the defense, placed the burden of persuasion on the State to disprove the defense, and required the jurors to acquit if they had a reasonable doubt about the defense. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991) (discussing the State’s and defendant’s burdens on self-defense); see also Tex. Pen.Code Ann. § 2.03(d) (“the court shall charge that a reasonable doubt on the [defense] requires that the defendant be acquitted”). We conclude the submitted charge was not erroneous. We resolve appellant’s second issue against him.

We affirm the trial court’s judgment.


author: Chief Justice THOMAS.

text:
    The CITY OF HEATH, Texas, Appellant, v. Mark DUNCAN, Kevin Mitchell, James E. Davis, Thomas J. Davis, Dianne Villarreal, Teresa Duncan, James E. and Shelby J. Davis Revocable Living Trust, Amy Davis, Benito Villareal, Kevin C. Mitchell, Robin R. Mitchell, Ronald D. Carroll, and Velvet Carroll, Appellees.
    No. 05-03-00434-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 23, 2004.
    Rehearing Overruled Jan. 13, 2005.

      • Joe H. Staley, Jr., Larry M. Lesh, Dallas, for Appellant.
    Jason Clarke Marshall, Winstead Schrest & Minick, P.C., Dallas, for Appel-lee.
    Before Chief Justice THOMAS and Justices FITZGERALD and MAZZANT.

      . The Honorable Amos Mazzant, Justice, succeeded the Honorable Tom James, a member of the original panel, upon Justice James’s retirement. Justice Mazzant has reviewed the briefs and the record before the Court.

   OPINION

Opinion by

Chief Justice THOMAS.

This case involves a dispute over the City of Heath’s plans to build a water tower in a residential subdivision. The thirteen appellees (Property Owners) own property in the subdivision. On interlocutory appeal, the City challenges the trial court’s denial of its motion to dismiss the case for want of jurisdiction. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05). For reasons set forth below, we affirm the trial court’s order.

FACTUAL BACKGROUND

Both the Property Owners and the City owned lots in a residential subdivision which was limited to residential use by deed restrictions. The City proposed the construction of a park project on its land. It entered into an agreement with the Texas Parks & Wildlife Commission (TPW) for the State to contribute funds for the park project. The agreement provided that the project property “shall not be converted to other than public recreation use.”

Subsequently, the City notified TPW that it was going to remove a small area of land from the park project property to construct a water tower. The record does not show whether TPW objected to the City’s change of plans, but the Property Owners allege the City did not hold any public hearing before making this change in the park plan. Once the Property Owners learned of the City’s plans, they sued for injunctive relief to block the construction of the water tower and the park project on the grounds that the proposed construction violated the deed restrictions applicable to the subdivision.

In response, the City filed an answer and also counterclaimed seeking condemnation of “the real property interests, if any, that the Condemnees have in and to the certain Declaration of Restrictions.” The City named the Property Owners as “condemnees.” Within one month, the parties entered into an agreed temporary injunction that barred the City from any construction on the project property until a condemnation award was obtained and deposited into the registry of the court.

Shortly thereafter, the trial court appointed special commissioners, who rendered an award totaling $331,280 to the condemnees. The City and two of the Property Owners filed written objections to the award, triggering the jurisdiction of the trial court to try the condemnation suit in the same manner as other civil suits. The City then filed a motion to deposit the amount of the award into the registry of the court, and the Property Owners filed a motion to withdraw the funds. The trial court ordered the withdrawal of the money, reciting that the City “does not oppose the Motion.”

After withdrawing the money, the Property Owners amended their petition to seek a declaration that the City was violating the deed restrictions, violating its own zoning ordinances, failing to comply with the requirements of the Texas Parks and Wildlife Code, and violating its contract with TPW. They sought a permanent injunction, attorney’s fees, and damages stemming from the City’s alleged violation of the temporary injunction. The City filed a motion to dismiss for lack of jurisdiction, attacking the standing of the Property Owners to seek any of the relief requested. The trial court denied the motion, and this appeal ensued.

In six issues, the City attacks the Property Owners’ standing to seek injunctive relief, declaratory relief, and damages, and seeks to recover the money deposited into the court’s registry and withdrawn by the Property Owners. With respect to standing, the City argues there is no standing because the Property Owners (1) do not own a compensable property interest in the deed restrictions, (2) have no unity of use or unity of ownership, (3) withdrew the commissioners’ award, and (4) do not have a particularized interest sufficient to confer taxpayer standing and are not third-party beneficiaries under the TPW contract.

STANDING

Subject-matter jurisdiction is essential to a court’s power to decide a case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Standing is a component of subject-matter jurisdiction, and we review standing under the same standard as that for review of subject-matter jurisdiction generally. Id. at 446. That standard requires the pleader to allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Dallas Indep. Sch. Dist. v. Powell, 68 S.W.3d 89, 91 (Tex.App.-Dallas 2001, no pet.). Since standing is a component of subject-matter jurisdiction, it cannot be waived by a party. Tex. Ass’n of Bus., 852 S.W.2d at 445.

The general test for standing requires that there be a real controversy between the parties that will actually be determined by the judicial declaration sought. Id. at 446. A plea to the jurisdiction is a dilatory plea challenging the cause of action without regard to whether it has merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea should be decided without delving into the merits of the case. Id. When we consider the trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiffs’ favor and look to the pleaders’ intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). The allegations in the plaintiffs’ petition are taken as true. Powell, 68 S.W.3d at 90-91. We are not required to look solely to the pleadings but may consider evidence in the record. Bland Indep. Sch. Dist., 34 S.W.3d at 555.

A. Deed Restrictions

In its second issue, the City argues the Property Owners have no com-pensable property interest that “could confer on them standing either to seek an injunction restraining the City’s park project or to compel the City to respond in damages on a theory of a taking or breach of contract.” In other words, the City argues there can be no “actual controversy” to be decided if the deed restrictions were not “property” in the first place as contemplated by the Texas Constitution.

Initially, we note the City itself filed the condemnation proceeding by its counterclaim and third-party petition expressly identifying the deed restrictions as the source of the property interest, “if any,” that it sought to condemn. Moreover, it named the Property Owners as the con-demnees. In their motion to dismiss and on appeal, however, the City relies on City of Houston v. Wynne and cases following it for the proposition that deed restrictions that merely forbid certain uses of land are not compensable property rights. See City of Houston v. Wynne, 279 S.W. 916, 919 (Tex.Civ.App.-Galveston 1925), writ ref'd per curiam, 115 Tex. 255, 281 S.W. 544 (1926); City of River Oaks v. Moore, 272 S.W.2d 389 (Tex.Civ.App.-Fort Worth 1954, writ ref'd n.r.e.); and Palafox v. Boyd, 400 S.W.2d 946 (Tex.Civ.App.-El Paso 1966, no writ). We are not persuaded.

In Wynne, the court refused to enjoin the City of Houston from condemning land to build a fire station, holding that deed restrictions were contrary to public policy and void in so far as they impaired the city’s power to condemn land for a public purpose. Wynne, 279 S.W. at 920. In the context of denying injunctive relief, the court stated:

We have reached the conclusion that appellees were not the owners of any interest in lots 4 and 5 in block 43, upon which the city proposed to erect a fire station, as the term owner is used in article 1, § 17, of the state’s Constitution.

Id. at 919-20.

The City relies on this language to attack standing in this case. However, this language must be read in the context of the opinion, which clearly was addressing the injunctive relief at issue in the case. The same court subsequently held that damages — rather than injunctive relief— could be recovered in a condemnation proceeding to acquire such restrictive covenants. City of Houston v. McCarthy, 464 S.W.2d 381, 386 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref'd n.r.e.).

In McCarthy, the City of Houston sought to condemn a reversionary interest owned by adjacent property owners. The reversionary interest was retained to enforce a restrictive covenant against the construction of any above-ground structures on the land being condemned. The Court ultimately characterized the resfrie-tive covenant as a negative easement that constituted a “property right” that must be compensated if damaged or taken in a condemnation proceeding. McCarthy, 464 S.W.2d at 386.

Although the City attempts to distinguish McCarthy by suggesting the court grounded its ruling on the existence of a reversionary interest, this distinction is not supported by the opinion. To the contrary, the court recognized a compensable property right in the “negative easement” created by the restrictive covenant and not the reversionary interest. Id.

Twenty-five years later, the same court further clarified McCarthy:

In [McCarthy ], this Court characterized a restrictive covenant as an interest in real estate that must be compensated if damaged or extinguished in a condemnation proceeding.... [TJhis Court held that the value of the appellees’ rever-sionary interest was nominal because there was no indication that it would ever be triggered. However, we also characterized the provision that the reversion could be enforced by subsequent owners of the property as a negative easement and an interest in real estate that was appurtenant to the appellees’ entire tract during the life of the easement. Thus, we held that the appellees were entitled to compensation for the damage sustained by the acquisition of their reversionary interest for highway purposes.

Harris County Flood Control Dist. v. Glenbrook Patiohome Owners Ass’n, 933 S.W.2d 570, 576 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (op. on mot. for reh’g) (citations omitted).

We agree with the holding in McCarthy and likewise conclude that the restriction on the use of property in this case is a property right for which compensation may be recovered. Accordingly, we conclude the trial court did not err in denying the motion to dismiss based on this argument. The second issue is without merit. Our disposition of this issue precludes the necessity to address issue three, which addressed “joint standing” under a theory of unity of ownership and unity of use.

B. Withdrawal of Condemnation Award

In its fourth issue, the City argues the withdrawal of the condemnation award “relinquished” any basis for standing “other than the nonexistent compensable property interest.” Both parties agree that once the award of the commissioners has been withdrawn, the City’s right to violate the deed restrictions cannot be contested. There remain the questions of the value of the property that was condemned and whether injunctive relief can be supported on grounds other than the deed restrictions. The withdrawal of the award does not affect standing on these issues, and the City has not cited any authority that it does. Although the City now owns the rights created by the deed restrictions, the parties are entitled to litigate the issue of adequate compensation in the trial court. Even if that value is nominal and the Property Owners ultimately must repay some part of the award they have withdrawn, that is a matter that will have to be decided at the trial of the condemnation case below. See State v. Jackson, 388 S.W.2d 924, 925 (Tex.1965) (affirming trial court’s order to refund portion of commissioners’ award once it had been withdrawn). Thus, the deed restrictions are no longer owned by the Property Owners, but standing remains to litigate their value, if any. We overrule the City’s fourth issue.

C. Taxpayer Exception and Third-Party Beneficiaries

In its fifth issue, the City contends the Property Owners have no standing to seek injunctive and declaratory relief as taxpayers, owners of “proximate property,” or third-party beneficiaries of the TPW contract.

In their third amended petition, the Property Owners allege they are taxpayers and owners of residential lots in the subdivision where the City proposes to build the park and water tower. They ask for an injunction to prevent the City from expending public funds in the construction of the water tower on the ground that the expenditure is illegal. The alleged illegality is the failure of the City to comply “with the requirements of Texas Parks and Wildlife Code Chapter 26,” the violation of its zoning ordinances, and the failure to comply with the TPW contract terms.

In the case of taxpayers, unless standing is conferred by statute, they must establish a particularized injury distinct from that suffered by the general public in order to challenge a government action. Bland Indep. Sch. Dish, 34 S.W.3d at 555-56. A long-established exception is that a taxpayer may sue in equity to enjoin the illegal expenditure of public funds, even without showing a distinct injury. Id at 556. Implicit in this exception are two requirements: (1) the plaintiff is a taxpayer; and (2) public funds are expended on the allegedly illegal activity. Williams v. Lara, 52 S.W.3d 171,179 (Tex.2001).

The Texas Parks and Wildlife Code requires notice and a public hearing by a municipality before any land dedicated and used as a park can be converted to another type of use. See Tex. Pauks & Wild.Code Ann. § 26.001 (Vernon 2002). The Property Owners allege the site of the water tower was removed from the land previously dedicated for a municipal park and the City did not give public notice or hold any hearings about the change as required by section 26.001 of the parks and wildlife code.

In Bland Independent School District, the supreme court considered a similar taxpayer claim of illegality. A school district entered into a contract to build a school without giving public notice required by state law. The supreme court concluded that the taxpayer exception to the standing requirement did not apply because the construction had already been completed. However, the failure to give public notice required by statute was not questioned as a basis for the claim of illegal expenditure of public funds. See Bland Indep. Sch. Dist., 34 S.W.3d at 556.

Construing the Property Owners’ pleadings in their favor and taking the allegations in the petition as true, their claim that the City has changed the use of park property without a public hearing required by state law is sufficient to confer standing to seek declaratory and equitable relief under the taxpayer exception without a showing of particularized injury. Id Having concluded that the Property Owners have standing to seek such relief under the taxpayer exception, we need not address whether they also have standing as “proximate property owners” or third-party beneficiaries. We overrule the fifth issue.

Finally, the City’s sixth issue is a request that we instruct the trial judge to order the return of the funds withdrawn by the Property Owners and to dismiss the suit for want of jurisdiction. Our rulings on the standing issues make it unnecessary for us to address this issue.

We affirm the trial court’s order denying the motion to dismiss for want of jurisdiction.

      . Section 21.018 of the Texas Property Code provides:
      (a) A party to a condemnation proceeding may object to the findings of the special commissioners by filing a written statement of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must be filed on or before the first Monday following the 20th day after the day the commissioners file their findings with the court.
      (b) If a party files an objection to the findings of the special commissioners, the court shall cite the adverse party and try the case in the same manner as other civil causes.
      Tex. Prop.Code Ann. § 21.018 (Vernon 2000).

      . In its first issue, the City briefs the issue of this Court’s jurisdiction over this interlocutory appeal. We agree that we have jurisdiction over this appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp. 2004-05).

      . In its brief, the City asserts any claim that chapter 26 was violated had to be filed within "thirty days” or was untimely as a matter of law. The City, however, does not argue that the claim in this, case was filed later than thirty days, nor did the City make that argument in its motion to dismiss for lack of jurisdiction.