The Texas Penal Code § 49.04 prohibits the driving of a motor vehicle while intoxicated. Section 49.01(2)(A) defines intoxication as “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.”


In January 2013, a prominent Abilene personal injury attorney named Burt Lee Burnett was charged with driving while intoxicated after his 2006 Maserati was involved in a rear-end accident. The arresting police officers found a bottle for prescription pills in Burnett’s vehicle. The other officer found some pills in Burnett’s pocket. One officer believed the prescription pill bottle was for the pills found in Burnett’s pocket.  He believed the pills were hydrocodone. One of the officers asked if Burnett had a prescription for hydrocodone. Burnett did not respond.


Pills Found at Scene Influence Charging Decision


Because of this discovery of pills, the State’s charging instrument alleged that Burnett was intoxicated “by not having the normal use of his mental and 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.”


In effect, the State’s charging instrument precisely tracked the language of the statute as it was permissible to do.


Burnett elected to stand trial before a jury. The State requested and the trial judge gave a charge to the jury that also tracked the language of § 49.01(2)(A).


Objection to Language in Jury Charge


Burnett’s lawyer timely objected to the entire “loss of faculties” statutory definition.  This was a great move by a smart criminal defense lawyer.


The trial judge overruled the objection.


The issue of Burnett’s objection was straightforward: there was insufficient evidence presented at trial that Burnett was intoxicated on any substance other than alcohol.


The jury convicted Burnett. The trial judge imposed a probated sentence of 120 days in jail for eighteen months and a fine of $2,000.


Burnett appealed.


Appeals Court Reverses Conviction


On April 29, 2016, the Eleventh District Court of Appeals reversed Burnett’s conviction and remanded for a new trial.


The Court of Appeals relied upon a 2011 decision by the Texas Court of Criminal Appeals, Ouellette v. State, which “suggested” it could be error to include the full definition of intoxication when there was no evidence of intoxication “by means other than alcohol.” The appeals court pointed out that “there [was] no competent testimony [during Burnett’s trial] upon which a rational juror could have found that Appellant consumed hydrocodone and that such consumption contributed to his intoxication.”


In effect, the appeals court ruled that the jury charge should have included only intoxication by alcohol as the basis for the charge for which Burnett was being tried. This error, the court concluded, harmed Burnett’s right to a fair trial.


“Because the pills became an integral part of this case and because the jury was permitted to find Appellant guilty of intoxication based on the introduction of pills into his system,” the court said, “we find that the jury charge error in this case caused the accused to suffer some harm.”


Texas Court of Criminal Appeals Upheld Reversal


On September 20, 2017, the Texas Court of Criminal Appeals upheld the court of appeals’ reversal of Burnett’s conviction. The court agreed with the court of appeals that the mere presence of a prescription bottle and pills in Burnett’s pocket “was insufficient for a jury to rationally infer that the white pills were hydrocodone and that Burnett was claiming to have a prescription specifically for hydrocodone.”


The Court of Criminal Appeals explained that “…although the trial court is obliged to

include in the jury charge statutory definitions that affect the meaning of elements of the

crime, Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009), the charge must

also be tailored to the facts presented at trial. That is, the trial court must submit to the

jury only the portions of the statutory definition of “intoxicated” that are supported by the

evidence. To do otherwise is error.”


Jury Charge Need to be Tailored to Facts Presented at Trial


The essence of both decisions is that before a jury charge can contain the full definition of intoxication beyond alcohol, the State must present credible evidence that the defendant was intoxicated by means other than alcohol and/or in conjunction with alcohol. The State’s charging instrument can still track the language of § 49.01(2)(A), but the judge’s charge to the jury cannot unless there is sufficient evidence presented at trial that would allow a rational juror to infer that defendant was intoxicated from a substance other than alcohol.    To allow such causes harm to the defendant because the other substance, pills in this case, becomes an integral part of the trial even though there is insufficient evidence to submit that theory to the jury.


John T Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is rated as a “Super Lawyer” by Thomson Reuters.