In the Court of Appeals for the 

Thirteenth District of Texas 

 

JOSE ANGEL LERMA, § 

 Appellant § 

 § 

v. § No. 13-13-00369-CR

 § 

THE STATE OF TEXAS, § 

 Appellee § 

Trial Number 219-81913-2012, in the 219th District Court 

Collin County, Texas. 

The Honorable Scott J. Becker, Judge Presiding. 

________________ 

STATE’S BRIEF

 ________________ 

GREG WILLIS 

Criminal District Attorney 

Collin County, Texas 

JOHN R. ROLATER, JR.

Assistant Criminal District Attorney 

Chief of the Appellate Division 

 LIBBY J. LANGE

Oral argument is not requested, Assistant Criminal District Attorney 

unless Appellant requests argument. 2100 Bloomdale Rd., Suite 200 

McKinney, Texas 75071 

(972) 548-4323 

FAX (214) 491-4860 

State Bar No. 11910100 

llange@co.collin.tx.us 

LAUREN HOPKINS

Assistant Criminal District Attorney 

ACCEPTED

13-13-00369-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

12/29/2014 5:31:16 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/29/2014 5:31:16 PM DORIAN E. RAMIREZ Clerk
i

TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE STATE’S ARGUMENTS.....................................................7

STATE’S REPLY TO APPELLANT’S FIRST ISSUE

 (The evidence was sufficient to prove DWI).........................................................8

The evidence is sufficient to support Appellant’s conviction for 

driving while intoxicated. Appellant exhibited classic signs of 

intoxication, the field sobriety tests indicated he was intoxicated, and 

he refused to provide a breath or blood sample. The jury was free to 

disbelieve Appellant’s alternative explanations for his behavior.

 

 Standard of Review...............................................................................................8

 Analysis.................................................................................................................9

STATE’S REPLY TO APPELLANT’S SECOND ISSUE

 (The indictment provided sufficient notice) ........................................................14

Because Appellant failed to object to, or file a motion to quash, the 

indictment before trial, he cannot now complain that his indictment 

was defective because it failed to define “intoxication.” In any event, 

the definitions of “intoxicated” are evidentiary matters that need not 

be alleged in the indictment, and Appellant’s indictment satisfied 

constitutional notice requirements, such that he was aware of the 

charges against him and could prepare a defense.

 Appellant did not preserve error .........................................................................14
ii

 The indictment was not defective .......................................................................15

PRAYER..................................................................................................................17

CERTIFICATE OF SERVICE ................................................................................18

CERTIFICATE OF COMPLIANCE.......................................................................18
iii

INDEX OF AUTHORITIES

Constitutions, Statutes, Codes, and Rules

TEX. CODE CRIM. PROC. art. 1.14(b)........................................................................14

TEX. CONST. art. I, § 10............................................................................................15

TEX. PENAL CODE § 49.01(2)(A) ...............................................................................9

TEX. PENAL CODE § 49.04(a)...............................................................................9, 15

TEX. PENAL CODE § 49.09(b)(2) ................................................................................1

Tex. R. App. P. 33.1...................................................................................................4

TEX. TRANSP. CODE § 724.015...................................................................................3

U.S. CONST. AMEND. VI ...........................................................................................15

Cases

Bartlett v. State,

270 S.W.3d 147 (Tex. Crim. App. 2008).............................................................12

Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010)...............................................................8

Cotton v. State,

686 S.W.2d 140 (Tex. Crim. App. 1985)...............................................................9

Crenshaw v. State,

378 S.W.3d 460 (Tex. Crim. App. 2012).............................................................15

Crouse v. State,

441 S.W.3d 508 (Tex. App.—Dallas 2014, no pet.)............................................13
iv

Dodson v. State,

No. 05-13-00297-CR, 2014 WL 429337 (Tex. App.—Dallas Feb. 3, 2014, no 

pet.) (not designated for publication) ...................................................................12

Jackson v. Virginia,

443 U.S. 307 (1979) ...............................................................................................8

Kirsch v. State,

306 S.W.3d 738 (Tex. Crim. App. 2010)...............................................................9

Maldonado v. State,

No. 02-13-00076-CR, 2014 WL 670745 (Tex. App.—Fort Worth Feb. 20, 2014, 

no pet.) (not designated for publication) ..............................................................12

Russell v. State,

290 S.W.3d 387 (Tex. App.—Beaumont 2009, no pet.)............................... 12, 13

State v. Barbernell,

257 S.W.3d 248 (Tex. Crim. App. 2008)...................................................... 15, 16

State v. Carter,

810 S.W.2d 197(Tex. Crim. App. 1991), overruled by State v. Barbernell,

257 S.W.3d 248 (Tex. Crim. App. 2008).............................................................15

State v. Cordell,

34 S.W.3d 719 (Tex. App.—Fort Worth 2000, pet. ref'd)...................................15

State v. Villarreal,

No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)...............4

Studer v. State,

799 S.W.2d 263 (Tex. Crim. App. 1990).............................................................14

Teal v. State,

230 S.W.3d 172 (Tex. Crim. App. 2007).............................................................14

Wesbrook v. State,

29 S.W.3d 103 (Tex. Crim. App. 2000).................................................................9
v

Williams v. State,

235 S.W.3d 742 (Tex. Crim. App. 2007)...............................................................9

Zill v. State,

355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.)........... 10, 11, 13
1

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument, as it is not requested by Appellant.

STATEMENT OF THE CASE

A jury found Appellant Jose Angel Lerma guilty of the third-degree-felony

offense of driving while intoxicated.1 CR 75, 76; 3 RR 177. Pursuant to the 

parties’ agreement, the trial court sentenced Appellant to ten years in prison, 

suspended his sentence, and placed him on community supervision for seven years. 

CR 76; 3 RR 178-80. 

STATEMENT OF FACTS

At approximately 1:00 a.m. on May 26, 2012, Marc Miscuraca was driving 

northbound on the service road of Highway 121 (the Sam Rayburn Tollroad), when 

he saw a silver Acura ahead of him driving “erratically.” 3 RR 20-21. The driver 

was swerving in and out of his lane, and he eventually hit a curb, which either 

knocked off one of his tires or caused it to go flat. 3 RR 3 RR 21. When 

Miscuraca saw a Department of Public Safety Trooper parked at a nearby gas 

station, he pulled over, and reported a possible drunk driver to Trooper Matthew 

Kasenic. 3 RR 22. 

 

1 Appellant stipulated to two prior DWI convictions. See Tex. Penal Code § 49.09(b)(2); 3 RR 

128, 136; SX 12.
2

As Trooper Kasenic set out to investigate, he saw a fellow trooper, Trooper 

Clayton Platt, pursuing the car with his lights and police siren activated. 3 RR 90-

92. He also noticed that the suspect’s front driver’s-side tire was missing, causing 

sparks to fly everywhere and creating a loud, grinding noise. 3 RR 92-93. As 

Trooper Kasenic joined the pursuit, he could see that the driver was staring straight 

ahead, with both hands on the steering wheel, giving no indication that he needed 

help. 3 RR 93. Because the suspect continued driving, Trooper Platt turned on his 

loud speaker and ordered him to stop. 3 RR 30. 

A short time later, the suspect—later identified as Appellant—pulled over. 

The troopers drew their weapons for officer safety, and Trooper Kasenic 

commanded Appellant to exit the car.

2

 3 RR 31-32, 94. Appellant complied but

seemed “pretty confused.” 3 RR 94. Trooper Kasenic holstered his weapon, and 

Trooper Platt ordered Appellant to get on the ground. 3 RR 32, 94. When 

Appellant did not comply, Trooper Kasenic put him on the ground and placed him 

in handcuffs. 3 RR 32, 95. The troopers then helped him up off the ground and 

read him his Miranda rights. 3 RR 33. Appellant told them that he had been at a 

bar, was heading to his home in Lewisville “right down the street,” and that he had 

stopped to put air in his tire. 3 RR 33, 95. The troopers knew, however, that 

 

2

The recording of the stop was admitted into evidence and played for the jury. 3 RR 50, 108; SX 

1.
3

Appellant was over twenty miles from Lewisville, that he was heading in the 

wrong direction, and that his front left tire was missing. 3 RR 56, 73, 91, 97. 

Trooper Platt noticed a strong smell of alcohol coming from Appellant’s breath, 

that Appellant had “really glassy” eyes, and that he appeared not to understand 

their directions. 3 RR 33. Trooper Kasenic detected a strong odor of alcohol on 

Appellant’s breath and noticed that his speech was slurred. 3 RR 95. Appellant 

said that he had been experiencing flu-like symptoms that day. 3 RR 39, 49. 

The troopers decided to pursue a DWI investigation, and Trooper Kasenic 

secured the scene while Trooper Platt administered field sobriety tests to determine 

whether Appellant was intoxicated. 3 RR 66, 98, 102-03. Trooper Platt 

administered the horizontal gaze nystagmus (HGN) test and had Appellant perform 

the walk and turn and the one-legged stand tests. 3 RR 38-41, 42-46. Appellant 

showed signs of intoxication on all three tests. 3 RR 41, 44, 46, 47. Based on 

everything he had seen, Trooper Platt determined that Appellant did not have the 

normal use of his mental and physical faculties due to the introduction of alcohol 

into his body, and he arrested Appellant. 3 RR 47-49. 

Trooper Platt placed Appellant in the front seat of his patrol car, read him 

the DIC-24 statutory warnings,

3

and requested that he give either a blood or a 

 

3 These warnings set out the penalties associated with refusing to provide a blood or breath 

sample. See Tex. Transp. Code § 724.015. 
4

breath sample. Appellant refused both. 3 RR 51-52. Because Appellant had twice 

before been convicted of DWI, Trooper Platt took Appellant to a hospital for a 

mandatory blood draw.4 3 RR 52. 

The blood-draw results showed that Appellant’s blood alcohol level was 

.063 grams of alcohol per 100 millileters of blood approximately one hour and 45 

minutes after the stop. 3 RR 54, 110, 114-15, 118; SX 10, 13. A person with an

alcohol level of .08 or more satisfies the legal definition of intoxication. 3 RR 115. 

Although Troopers Platt and Kasenic expected Appellant’s blood alcohol level to 

be “pretty high,” Appellant’s blood-alcohol results did not change their opinion 

that Appellant had been driving while intoxicated due to the ingestion of alcohol. 

3 RR 74, 81, 104. While Trooper Platt agreed on cross-examination that he had 

only had “very basic” first-responder training in identifying stroke symptoms or 

neurological disorders, he disagreed that the symptoms for those medical 

conditions were “very similar” to symptoms of intoxication. 3 RR 80. 

Forensic scientist Andrew Macy, who tested Appellant’s blood sample, 

testified that, according to the National Safety Council’s Committee on Alcohol 

and Other Drugs, anyone with an alcohol blood-alcohol level of .08 will have lost 

the normal use of his or her mental and physical faculties due to alcohol but that 

 

4 Appellant has not previously challenged the legality of the blood draw and therefore has 

forfeited any relief on this issue. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 

(Tex. Crim. App. Nov. 26, 2014) (holding that mandatory blood draws are unconstitutional). See 

Tex. R. App. P. 33.1. In any event, the record makes clear that Appellant strategically relied on 

the 0.063 blood-draw result to assert his innocence. 3 RR 18-19, 123, 167-70. 
5

some people will have lost it with a blood-alcohol level as low as .05 and maybe 

even lower. 3 RR 123. After discussing absorption and elimination rates and 

retrograde extrapolation, Macey stated that Appellant’s blood alcohol 

concentration at 3:00 a.m. could have been higher, lower, or the same at 1:15 a.m., 

when Appellant was driving. 3 RR 116-17, 121. Macey could not say onehundred percent whether Appellant’s alcohol level while he was driving was .08 or 

over, or under .06. 3 RR 123. 

Forty-six-year-old Appellant testified that his behavior that night was due to 

medical issues. 3 RR 133-36, 148. He explained that he had gone to work the day 

before but that he had felt ill from flu-like symptoms that had persisted for the past

two weeks. 3 RR 137. He went home after work but then went to a neighborhood 

bar in Lewisville to meet some friends. He was not sure what time he arrived, but 

it was late. 3 RR 139-40. He took three beers with him to the bar and drank either 

two or three of them. 3 RR 141. After a while, he began getting a “really 

massive” headache and feeling nauseous. His legs started to get kind of wobbly 

and shaky, and his eyes got “kind of blurry,” and he could not focus. 3 RR 140, 

154. He became confused. 3 RR 141. He left to go home, which was five to 

seven miles away, but he ended up in McKinney. 3 RR 141-42. He did not 

remember what happened after he left the bar that night. 3 RR 142, 147-48, 155. 
6

Appellant testified that his blurred vision lasted for two or three days after 

his arrest and that his headaches lasted for close to three months. 3 RR 143-44. 

His general practioner prescribed antibiotics and a fever reducer for high blood 

pressure and a sinus infection. 3 RR 144. But his symptoms did not subside, and 

he eventually got insurance and went to see other doctors. He is now being treated 

for “[c]holesterol and high blood pressure” and for “possibly having an onset of a 

ministroke.” 3 RR 146. On cross-examination, the State introduced Appellant’s 

medical records. 3 RR 149-50; SX 16, 17. Although Appellant’s testimony was 

not entirely clear regarding the content of the records, the State argued without 

objection in closing argument that the medical records did not contain any 

information about Appellant having a stroke.53 RR 175. 

 

 

 

5 Appellant’s medical records are difficult to decipher, and Appellant did not at trial and does not 

now cite to any place in the records that supports his suggestion that he was suffering from a 

neurological disorder the night of the offense and that this disorder caused the loss of his mental 

and physical faculties. 
7

SUMMARY OF THE STATE’S ARGUMENTS

State’s Reply to Appellant’s First Issue:

The evidence is sufficient to support Appellant’s conviction for driving 

while intoxicated. Appellant exhibited classic signs of intoxication, the field 

sobriety tests indicated that he was intoxicated, and he refused to provide a breath 

or blood sample. The jury was free to disbelieve Appellant’s alternative 

explanations for his behavior, as it is the sole judge of the weight and credibility to 

be given to witness testimony and other evidence. 

State’s Reply to Appellant’s Second Issue:

Because Appellant failed to object to or file a motion to quash the indictment 

before trial, he cannot now complain that his indictment was defective for failing

to define “intoxication.” In any event, the definitions of “intoxicated” are 

evidentiary matters that need not be alleged in the indictment, and Appellant’s 

indictment satisfied constitutional notice requirements, such that he was aware of 

the charges against him and could prepare a defense. 
8

STATE’S REPLY TO APPELLANT’S FIRST ISSUE

(The evidence was sufficient to prove DWI)

Appellant asserts that the evidence was insufficient to prove that he lost the 

normal use of his mental or physical faculties due to the introduction of alcohol

because his behavior was easily explained by the medical conditions he was 

suffering at the time and because his blood alcohol concentration was below the 

legal limit. App. Br. 5, 10, 12. 

The evidence is sufficient to support Appellant’s conviction for driving 

while intoxicated, however. Appellant exhibited classic signs of intoxication, the 

field sobriety tests indicated he was intoxicated, and he refused to provide a breath 

or blood sample. The jury was free to disbelieve Appellant’s alternative 

explanations for his behavior, as it is the sole judge of the weight and credibility to 

be given to witness testimony and other evidence. 

Standard of Review

In determining the sufficiency of the evidence, the reviewing court considers 

all evidence in the light most favorable to the jury’s verdict and determines 

whether any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The trier of fact is 

the sole judge of the weight and credibility given to witness testimony, and it is 

within the sole province of the jury to resolve any conflicts in the evidence. 
9

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The reviewing 

court may not act as a “thirteenth juror” and reweigh the jury’s determinations of 

the weight or credibility of the evidence. Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007). 

Analysis

 A person commits the offense of driving while intoxicated (DWI) if he is 

intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code 

§ 49.04(a). “Intoxication” is defined alternatively in two ways: (1) subjectively—

not having the normal use of mental or physical faculties by reason of the 

introduction of alcohol; or (2) objectively—having an alcohol concentration of 

0.08 or more. See Tex. Penal Code § 49.01(2)(A). Here, the trial court’s jury 

instructions authorized the jury to convict Appellant if it found that he was 

intoxicated under the subjective definition and that he had twice been convicted of 

DWI. CR 70-71. 

The Court of Criminal Appeals has identified evidence that “would logically 

raise an inference that the defendant was intoxicated at the time of driving,” 

including: erratic driving, slurred speech, glassy eyes, the odor of alcohol on the 

person’s breath, admissions to drinking, and the inability to follow directions or 

perform field sobriety. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 

2010); Cotton v. State, 686 S.W.2d 140, 142-43, 142 n. 3 (Tex. Crim. App. 1985). 
10

The testimony of a police officer about a defendant’s behavior and opinion that the 

defendant is intoxicated provides sufficient support to uphold a jury verdict. See 

Zill v. State, 355 S.W.3d 778, 785-86 (Tex. App.—Houston [1st Dist.] 2011, no 

pet.). 

Based on several classic signs of intoxication, Trooper Kasenic believed 

Appellant had lost the normal use of his mental and physical faculties due to the 

ingestion of alcohol; specifically, Appellant appeared to be oblivious to the fact 

that he was driving on only three tires and that two marked vehicles with activated 

lights and sirens were following him, his speech was slurred, and his breath had a 

strong smell of alcohol. 3 RR 94-95, 103. Appellant’s .063 test result did not 

change Trooper Kasenic’s opinion that Appellant was intoxicated, and he had no 

reason to believe Appellant was suffering from a stroke or seizure that night. 3 RR 

104. 

Trooper Platt also witnessed recognized signs of intoxication, including 

Appellant’s glassy eyes, the smell of alcohol on his breath, and his inability to 

follow directions or properly perform the field sobriety tests. 3 RR 32-33, 47. 

Trooper Platt specifically explained that the HGN tests he administered “certainly 

indicated intoxication.” 3 RR 41. Before administering the HGN tests, Trooper 

Platt questioned Appellant to determine whether he was a good candidate. When 

he asked Appellant about any recent head injuries, Appellant said that he had hit 
11

his head on the first-aid kit at his office, but he also indicated that it was no longer 

causing him any problems. 4 RR 38-39. Appellant did not complain of a headache

or any other medical condition, other than flu symptoms. 3 RR 49-50. When the 

State asked Trooper Platt whether he could tell from this type of test whether a 

person had suffered a recent traumatic head injury, he stated that “[g]enerally, 

neurological issues can be seen,” explaining that

[t]he pupils are not equal size, or there’s not equal tracking present 

because, basically, in the few rare cases that I’ve had that people don’t 

have equal pupil size, it generally indicates that they either have a 

previous condition or have a condition that they don’t know about. It 

could be something as serious as a brain tumor, or it could be 

something more minor that they’ve had for a long time.

3 RR 42. Trooper did not see any of those signs in Appellant; in fact, Trooper Platt 

had “every reason to believe” that Appellant was intoxicated due to the 

consumption of alcohol. 3 RR 41-42, 81. If Trooper Platt had thought Appellant 

was suffering from a medical condition, he would have called an ambulance. 3 RR 

47. 

In addition to the two troopers’ consistent conclusions that Appellant had 

lost the normal use of his mental and physical faculties due to the ingestion of 

alcohol into the body (3 RR 48-49, 81), the trial court admitted a redacted version 

of the recorded encounter. 3 RR 50, 108; SX 1. Therefore, the jury could 

determine for itself whether Appellant’s behavior appeared to be the result of a 

medical/neurological condition or due to intoxication. See Zill, 355 S.W.3d at 788; 
12

Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) 

(“[B]ecause the jury saw the videotape of the stop, it could draw its own 

conclusions from observing Russell’s behavior in deciding whether he appeared 

intoxicated.”). The jury also could have considered Appellant’s refusal to take a 

breath or blood test as indicating consciousness of guilt. See Bartlett v. State, 270 

S.W.3d 147, 153 (Tex. Crim. App. 2008). 

While Appellant’s blood-alcohol concentration (BAC) was under 0.08 at the 

time of the test, this fact is not dispositive and does not, without more, prove 

Appellant’s innocence.

6

 Indeed, the National Safety Council’s Committee on 

Alcohol and Other Drugs has determined that some people will have lost the 

normal use of their mental and physical faculties due to alcohol with a bloodalcohol level as low as .05 and maybe even lower. 3 RR 123. And the subjective 

definition of intoxication covers this situation. Moreover, forensic scientist Macey 

testified that Appellant’s 3:00 a.m. 0.063 BAC level could have been higher—up 

to .08 or .085—at the time he was stopped at 1:15 a.m., although it also could have 

been lower or the same. 3 RR 121-22. 

 

6

See Dodson v. State, No. 05-13-00297-CR, 2014 WL 429337, at *1-4 (Tex. App.—Dallas Feb. 

3, 2014, no pet.) (not designated for publication) (holding DWI evidence sufficient, despite 

defendant’s .063 and .058 blood-alcohol level two hours after the stop); Maldonado v. State, No. 

02-13-00076-CR, 2014 WL 670745, at *1-5 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (not 

designated for publication) (holding DWI evidence sufficient where defendant’s breath samples 

registered at alcohol concentrations of .071 and .072).
13

Although Appellant presented alternative explanations for the admitted loss 

of his physical and mental faculties, it was the jury’s function to resolve any 

conflicts in the evidence, and the jury was free to accept or reject any and all of the 

evidence presented by either side. See Crouse v. State, 441 S.W.3d 508, 515 (Tex. 

App.—Dallas 2014, no pet.). Thus, the jury was free to believe the troopers’ 

testimony that Appellant appeared to be intoxicated due to the ingestion of alcohol 

and disbelieve Appellant’s alternative explanation that a medical/neurological

condition caused his erratic behavior. See Zill, 355 S.W.3d at 787 (“Although 

Appellant’s behavior during the traffic stop may have been consistent with a head 

injury, her behavior also constitutes recognized evidence of intoxication.”); 

Russell, 290 S.W.3d at 396-98 (holding sufficient evidence to support DWI 

conviction, despite Russell’s contention that his behavior and symptoms were 

caused by hypolglycemia and diabetes). 

For these reasons, the evidence was sufficient to support Appellant’s 

conviction, and his first issue should be overruled. 
14

STATE’S REPLY TO APPELLANT’S SECOND ISSUE

(The indictment provided sufficient notice)

Appellant asserts that his indictment was fatally defective because it failed to 

define “intoxication,” and therefore, his conviction should be reversed and his case 

remanded for a new trial. App. Br. 13-16. 

Because Appellant failed to object to or file a motion to quash the indictment 

before trial, he forfeited any complaint on this issue. Additionally, the definitions 

of “intoxicated” are evidentiary matters that need not be alleged in the indictment, 

and Appellant’s indictment satisfied constitutional notice requirements, such that 

Appellant was aware of the charges against him and could prepare a defense. 

Appellant did not preserve error

As Appellant acknowledges, he did not file a motion to quash the indictment 

or object to any “defect, error, or irregularity of form or substance” in the 

indictment before the trial commenced. App. Br. 13; see Tex. Code Crim. Proc. 

art. 1.14(b). Thus, he forfeited the right to object, and he “may not raise the 

objection on appeal or in any other postconviction proceeding.” Id.; see Teal v. 

State, 230 S.W.3d 172, 176-77 (Tex. Crim. App. 2007) (“Texas law now requires 

the defendant to object to any error in the indictment before the day of trial and 

certainly before the jury is empaneled.”); Studer v. State, 799 S.W.2d 263, 273 

(Tex. Crim. App. 1990). Because Appellant failed to preserve error, this issue 

should be overruled. 
15

The indictment was not defective

A criminal defendant is entitled to fair notice of the specific charged offense. 

See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The charging instrument must 

convey this notice sufficiently so that the accused may prepare his defense. See

State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). 

A DWI indictment provides adequate notice when it sets out the elements of 

the offense, as it did in this case.

7

 See Tex. Penal Code § 49.04; Crenshaw v. State, 

378 S.W.3d 460, 465-66 (Tex. Crim. App. 2012). While “intoxication” is an 

element of DWI, its two alternative definitions—subjective and objective 

intoxication—are not. Indeed, these definitions are the means by which “‘the State 

may prove intoxication, rather than alternate means of committing the offense.’” 

Crenshaw, 378 S.W.3d at 466 (quoting Barbernell, 257 S.W.3d at 256). Thus, 

“the State may simply allege that a person was ‘intoxicated’ to satisfy the notice 

requirement.” Id. 

Appellant cites State v. Cordell, 34 S.W.3d 719, 721 (Tex. App.—Fort 

Worth 2000, pet. ref’d), for the proposition that an indictment charging a person 

with DWI must allege which definition of “intoxicated” the State will attempt to 

prove at trial. App. Br. at 16. The Cordell court, however, relied on State v. 

Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991), which the Court of Criminal 

 

7 The indictment against Appellant alleged that he operated a motor vehicle in a public place 

while intoxicated and that he previously had been twice convicted of misdemeanor DWI. CR 12. 
16

Appeals overruled in Barbernell, 257 S.W.3d 248, 255-56. The Barbernell court 

held that the definitions of “intoxicated” in the DWI statute were evidentiary, and 

therefore, do not need to be alleged in the charging instrument. Id. at 256. 

Because Appellant’s DWI indictment provided him with fair notice of the 

offense of which he was being charged, it was not defective, and his second issue 

should be overruled. 
17

PRAYER

Appellant’s trial was without prejudicial error. The State prays that 

Appellant’s conviction and sentence be affirmed.

Respectfully submitted,

GREG WILLIS

Criminal District Attorney

Collin County, Texas

JOHN R. ROLATER, JR.

Assistant Criminal District Attorney

Chief of the Appellate Division

/s/ Libby J. Lange

LIBBY J. LANGE

Assistant Criminal District Attorney

2100 Bloomdale Rd., Suite 200

McKinney, TX 75071

(972) 548-4323

FAX (214) 491-4860

State Bar No. 11910100

llange@co.collin.tx.us
18

CERTIFICATE OF SERVICE

The State has e-served counsel for Appellant, Derek M. Harkrider, and sent 

a courtesy copy of the State’s Brief to harkriderlaw@gmail.com, on this the 29th 

day of December, 2014.

/s/ Libby J. Lange

Libby J. Lange

CERTIFICATE OF COMPLIANCE

This brief complies with the word limitations in Texas Rule of Appellate 

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to 

prepare this brief, the undersigned attorney certifies that this brief contains 3,534

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1). 

/s/ Libby J. Lange

Libby J. Lange