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Click here for the full text of this decision FACTS:Adriane Elaine Otto challenges her conviction of driving while intoxicated. At trial, Officer John Derrick Jackson testified that around 1:40 a.m., he observed Otto’s van parked in the street with the engine running and the lights on. He then approached the van and saw Otto slouched over in the driver’s seat with her shirt off. Unable to wake Otto, Jackson called Corporal David Sales for assistance. The officers observed that Otto was unsteady on her feet, appeared confused, and was cursing. They also smelled alcohol on her breath and in the van. According to the officers, Otto stated she had a lot to drink earlier in the evening and refused to submit to sobriety tests except for the horizontal gaze nystagmus. There was evidence that Otto had consumed alcohol and, albeit involuntarily, ingested an unknown drug. Otto testified that she did drink two glasses of wine early that evening. She then drove to a bar and only drank soda. Upon leaving the bar around 1 a.m., Otto began to feel sick and a male individual accompanied her to the parking lot. While in the parking lot, the male individual allegedly assaulted Otto and tore her shirt. Out of concern that the male individual might follow her, she drove to her ex-husband’s home. Otto stated that her next memory is being awakened by police officers. Essentially, Otto testified that she was unknowingly drugged and that was the cause of her intoxication. Based on Otto’s testimony, at the state’s request, the trial court gave a concurrent causation instruction. On original submission, this court affirmed Otto’s conviction. This appeal is on remand from the Texas Court of Criminal Appeals. HOLDING:Reversed and remanded for a new trial. Otto claims the trial court erred by submitting an instruction that expanded on the allegations in the charging instrument and thus allowed a conviction on a theory not previously alleged. In Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004), the jury charge permitted conviction if the ingestion of drugs made the defendant more susceptible to being intoxicated by the charged intoxicant � alcohol. Here, the jury charge and instructions authorized the jury to find Otto guilty if it found her intoxicated by reason of 1. the introduction of alcohol into her body, the charged intoxicant, or 2. by the introduction of unknown drugs concurrently with alcohol � a combination theory. A jury’s finding that Otto was intoxicated by reason of introduction of unknown drugs concurrently with alcohol does not mean that the jury found Otto intoxicated by alcohol alone. The evidence supported the conclusion that Otto was intoxicated on drugs and alcohol, the charge allowed a conviction based on intoxication due to drugs and alcohol, and the state argued to convict Otto if they found her to be intoxicated due to drugs and alcohol. The court is unable to conclude that Otto was not harmed by the erroneous charge. OPINION:Simmons, J.; Stone, Angelini and Simmons, J.J.

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