# The Attorney General of Texas June 23, 1980

HonorableMauriceS. Pipkin Executive Director State Commission onJudicial Conduct P. 0. Rex 12266 Austin, Texas
Dear Mr.Pipkim OpinionNo. m-197
Re: Whether “publicintoxication ” is a lesser included offense of “drivingwhile intoxicated.”

You ask if the offense of “public intoxication ” is a lesser included offense of “drivingwhile intoxicated.” In 1973, the Texas Code of Criminal Procedure was amended to estabDsh a new scheme for determining and dealing with “lesser included offensesn Article 37.08 ’thereof now reads: Inthe prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty **of** the greater offense, but guilty of any lesser included offense. Article 37.09of the Code of Criminal Procedure states:

An offense is alesser included offense if:
a, it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; Article 37.09 of the Code defines lesser included offenses interms of the relationship between the lesser offense and the “ offense charged.lt Ifthe facts necessary to be proven in a particular case in order to establish the

“ offense charged” would also prove the lesser offense, the lesser offense is an %cluded” offense in that case, whether or not in a different case the greater offense could be proved on facts that would not include the lesser offense. Campbell v. State, 571S.W.%d 161(Tex. Crim. App. 1976);&el v. (Tex.Crim. App. 1976% :. Grim. App. 1976);Day v. State. 532SW.: For that reason, the determm 

## ~~~~2d ation of whether a particular offense bears such a relationship to the offense charged must be made co a ca!~ by case basis. Campbell v. State, supra.

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Thus, unless we can say as a matter of law that it would never be necessary in a particular case to prove facts establishing the offense of “public intoxication ” in order to also prove the offense of %iving while intoxicated.,” we cannot say that under no circumstances would “public intoxication ” be a lesser included offense of “driving while intoxicated.” See Jones v. State, 586S.W.2d542 (Tex. Crim. App. 1979).~Cf.Ahearn v. State, 588 S.Wm 327 (Tex. Crim. App. 1979). In our opinion “public intoxication ” may under certain circumstances be a lesser included offense where the offense charged is “drivingwhile intoxicated.” The offense of “public intoxication ” is committed by a person if (1)he appears in a public place (2)under the influence of alcohol or any other substance, (3)to the degree he may endanger himself or another. Penal Code S 42.08. An essential element of the proof necessary to convict under the foregoiq penal provision is a showing that the defendant was intoxicated to the extent that he might endanger himself or another. Dickeyv. State, 652S.W.Bd 467 (Tex. Crhn. App. 1977). See also Loden v. State, 561S.W.2d2 (Tex. Crim. App. 1978). It has been sugested that %

“ endanger”element of proof is not required inprosecutions for %&iv& while intoxicated,” and that “public intoxication ” cannot,’ therefore, be a lesser included offense of that offense. However, an examination of holdingsof the Court of Criminal Appeals compels a different conch&on. Article 67Ol&l,V.T.C.S., provides: Any person who drives or operates an automobile or any motor vehicle ~upon

any public road or highway in this State,

. . . or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor. d.. It is readily seen that the foregoing “driving while intoxicated” statute does not mention the endangerment of persons, and inStewart v. State, 299S.W.646 (Tex. Crim. App. 19271, the court observed that the law does not withhold its sanction until an intoxicated individual on the highway killssomebody OF wrecks his ownor some other car: If he is drunk, or is under the influence of intoxicants, he is forbidden to drive an automobile on a public highway in this state, end the law is violated when he does so drive his oar, as much as if he keepsthe middle of the road as if he wrecks a dozen cars. Id at 647. Moreover, in- 165S-W.2 i 904 (Tex. Crim. App. 19421, the court zd of ?lrivlng while intoxicated” : 4 I It must be borne in mind that the two elements: First, automobile upona public highway is composed chiefly of secon4 drivhg an such condition.

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Id at 905. - But those cases address cfiIythe non-necessity of showing that harm resulted from danger (Stewart, s ra), end the necessity that the state prove both intoxication and driving (Snider,supra .

3- of them holdsthat “drivingwhile intoxicated” is notper Neither dangerous to persons, If it Is, the need for proof thereof is obviated because “driving while intoxicated” would endanger persons as a matter of law. Proof of the. two chief elements wouldestablish a thin-k danger. In Day v. State, w the Court of Criminal Appeals decided that “ criminal trespass ” was a lesser included offense in a case where the offense charged was “burglary,”although the criminal trespass statute (but not the burglarystatute) expressly required for conviction thereunder proof that the defendant “had notice that entry was forbidden, or received notice to depart.” See Penal Code SS30.02, 30.05. The state argued that enotice” was an additional elemZiZ not necessary to prove In‘estabIIshlng a burg&y, and that criminal treqass could, therefore, never be a lesser In&&d offen& of burglary. But the court said:

[Iln a situation such as that presented in the present case where proof shows that the accused entered a building not then open to the public, the hotice’ requIremerit would be satisfied by proof of entry into the buIIdIngsince *notice’ can be establfshed by a Tenfen& or other enclosure obviously desIgned to exclude

I

. . . . Therefore, ths elements of criminal trespass, including ‘notice,’ could be established by proof of the same facts necessary to prove~theoffense of burglary. The proof of additional facts would not be necessary, and the requirements of 37.09(l)

. . . would be satisfied. (Emphasis added). Dayv. State, B at 306. Perhaps the evil that the “drivingwhile intoxicated” statute intends to correct is so obvious that courts seldom need to discuss it, but it has been discussed on occaslor~ In Johnson v. State, 147S.W.2d8ll (Tex. Crim. App. 19411, the court, speaking of the Vrunk driving” law, said, “Theobject and purpose of the law is to prevent men, women, and children from being wounded and maimed by persons driving automobIles while in a state of intoxication.” 147S.W.2d614. InBlackburnv. State, 204S.W.Bd 619(Tex. Crim. App. 1947),it was said, “Thepurpose of the law is to protect people against drunk drivers.

. . . Id at 620. - In our opinion, the elements of “public intoxication,” including intoxication “to the degree he may endanger himself or others,” could be established in some cases by proof of the same facts necessary to prove the offense of “driving while intoxicated” Proof of additional facts wouldnot be necessary. The soundness of this conclusion is illustrated by the case of Dickey v. State, S~IPFB, decided in 1977. Dickey was a.probationer who was discovered drunk and asleep in the

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front seat of a car outside a lounge in the middle of the night. Hisprobation was revoked ongrounds he had committed the offense of “public intoxication.” Onappeal he argued that the evidence was insufficient to show that he was a danger to himself or anyone else. The court rejected that argument, concluding that potential danger was enough:

In the Instant case appellant rendered himself subject to potential danger by becoming so intoxicated that he fell asleep in a car in front of a lounge inthe middle of the night. The State points out in its brief that appellant was ‘vulnerable to an assortment of difficulties.’ It is also possible that appellant could have awakened and taken it uponhimself to drive himself and his companion home, which would have constituted an even clearer danger. (Emphasis added). &&at 466. It is apparent from the foregoir&I that had Dickey actually attempted to drive the car and been oharged with %drivlngwhile intoxicated” rather than “public intoxication,” the latter offense would nevertheless have been a “lesser included offense” of the one charged. See BrIttonv. State, 576S.W.2d685 (Tex. Crim. App. 1979);See Rx arte Ross 522S.W.2dm

‘(Tex.Crim. App. 1975);Cf. m 597P.2d 478 1979). --5---+ 5th CU. - You next esk whether the public interest underlying article 67Ol&l,V.T.C.S, would be served Ifjudgea were permitted to knowingly dispose of a driving while intoxicated case in which public intoxication Isnot a lesser .included offense Ina manner which does not result Inthe administrative or penal sanctions imposed bysections 24and 25of article 6667b, V.T.C.S., and article 67OEl, V.T.C.S. This question on the public interest raises policy rather than legal questions and accordingly cannot be addressed In the opinion Pro== SUMMARY

The offense of “public intoxication ” may sometimes be a lesser Included offense when U%ng while intoxicated” is the offense charged.

Attorney General ofTexas JOHNW.FAINTER,JR. First Assistant Attorney General TEDL. HARTLEY Executive Assistant Attorney General

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Prepared by Bruce Youngblood APPROVED: OPINION

COMMITTEE C. Robert Heath, Chairman Gerald Carruth SusanGarrison Rick Gilpin Bruce Youngblood

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