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Click here for the full text of this decision FACTS:The indictment alleged that Adriane Elaine Otto was intoxicated by “not having the normal use of his (sic) mental and physical faculties by the reason of the introduction of alcohol into his (sic) body.” The state’s evidence in support of this allegation included Otto’s refusal to take a breathalyzer test and her statement to the arresting officers that she had had a lot to drink. Otto testified at trial, however, that she had consumed only a small amount of alcohol (two glasses of wine) during dinner at a restaurant. After dinner, she went to a “sports bar” where she spent the evening drinking only soda with a male friend. Otto testified that this male friend must have put some unknown drug into her soda without her knowledge. She seemed to suggest that it was only this unknown drug, and not any alcohol, that caused her to be intoxicated. Tracking the allegations in the indictment, the application paragraph of the jury charge authorized the jury to convict Otto if it found that she was intoxicated “by the reason of the introduction of alcohol into his (sic) body.” Pursuant to Texas Penal Code �6.04(a), the state requested and received, over Otto’s objection, a concurrent-causation jury instruction stating: “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient. “Therefore, if you find from the evidence beyond a reasonable doubt that the intoxication of Adriane Elaine Otto would not have occurred but for the defendant’s conduct, as charged in the indictment, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient, you will find the defendant criminally responsible. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not criminally responsible and say by your verdict ‘Not Guilty.’” Otto objected to this instruction, “because it would let the State argue that a combination of drugs could have caused the intoxication when they pled alcohol only.” Otto further explained that the evidence in this case showed that intoxication was caused by “either alcohol or it was something else, but it wasn’t the combination.” The 4th Court of Appeals initially decided that the concurrent-causation instruction did not improperly expand on the allegations in the indictment. On discretionary review, the CCA remanded the case to the 4th Court to reconsider its decision in light of its 2004 decision in Gray v. State. On remand, the 4th Court decided that the concurrent-causation instruction improperly expanded on the allegations in the indictment and thus allowed a “conviction on a theory not previously alleged.” The CCA granted review to decide whether the instruction improperly expanded on the allegations in the indictment. HOLDING:Affirmed. In cases like this, in which the state alleges intoxication by alcohol alone and the defense claims it should win because the defendant ingested other intoxicating substances, the CCA stated that CCA case law establishes that a charge improperly expands on the allegations in the indictment when the charge defines intoxication in terms of whether “the defendant was intoxicated by a combination of unknown drugs and alcohol.” A charge does not, in these types of cases, improperly expand on the allegations in the indictment when the charge defines intoxication in terms of whether “the defendant [was] intoxicated with alcohol, either alone or in combination with a drug that made him more susceptible to alcohol.” This latter charge is commonly referred to as a “synergistic effect” or “susceptibility” charge. The CCA stated that its decision in Gray could be read as approving of the statement 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 4th Court decided that the concurrent-causation instruction improperly expanded on the allegations in the indictment, because this instruction authorized a conviction under a “combination” theory. The CCA also decided that the concurrent-causation instruction, especially when considered with the state’s closing jury arguments and its position at the charge conference, authorized Otto’s conviction under a “combination” theory. While this instruction, the CCA stated, was responsive to the defense theory that Otto’s intoxication was caused solely by an unknown drug, it still authorized the jury to convict if it rejected this theory but still found that Otto’s intoxication was caused by a combination of alcohol and the unknown drug. Nothing in this instruction or any other part of the charge, the CCA stated, authorized the jury to convict Otto upon a finding that a combination of alcohol and the unknown drug made Otto more susceptible to the alcohol as required by Gray. The CCA therefore held that the instruction improperly expanded on the allegations in the indictment. OPINION:Hervey, J., delivered the opinion of the court in which Meyers, Price, Johnson and Keasler, JJ., joined. Keller, P.J., did not participate. CONCURRENCE:Womack, J., concurred without a written opinion. DISSENT:Cochran, J., filed a dissenting opinion in which Holcomb, J., joined. “I respectfully dissent. I think that the trial court correctly included a statutory jury instruction on concurrent causation in this DWI case. That instruction appropriately deals with cases in which the defendant is charged with being intoxicated on one substance, such as alcohol, and defends himself by asserting that he was intoxicated on some substance other than the one pled by the State.”

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