PD-________-15

In the Court of Criminal Appeals of Texas

At Austin

♦

No. 14-13-00706-CR

In the Court of Appeals

For the Fourteenth District of Texas

At Houston

♦

No. 1836127

In County Criminal Court at Law Fifteen

Of Harris County, Texas

♦

Joel Navarro

Appellant

v. 

The State of Texas

Appellee

♦

State’s Petition for Discretionary Review

♦

Devon Anderson

District Attorney

Harris County, Texas

Lauren Clemons

Shannon Drehner

Assistant District Attorneys 

Harris County, Texas

Clinton A. Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1201 Franklin St., Suite 600

Houston, Texas 77002 

Telephone: 713.755.5826

Oral Argument Requested

PD-0929-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/23/2015 11:47:13 AM

Accepted 7/24/2015 10:52:28 AM

ABEL ACOSTA

CLERK
Statement Regarding Oral Argument

The State’s first question for review regards a new burden the 

Court of Appeals has placed on trial courts to modify statutory 

definitions if the jury might get confused by the statutory text. This is a 

far-reaching holding that could apply in numerous situations beyond the 

facts of the present case. The State believes the back-and-forth of oral 

argument would help this Court explore and understand the 

ramifications of the Court of Appeals’s holding. 

The State’s second question for review concerns an incorrect trial 

procedure that occurred in this case and seems to occur throughout the 

state without the appellate courts noticing. Because of the sheer number

of cases in which this incorrect procedure seems to occur, oral argument 

would be appropriate. 

i
Identification of the Parties

Counsel for the State:

Devon Anderson 

 District Attorney of Harris County

Lauren Clemons & Shannon Drehner

— Assistant District Attorneys at trial

Clinton A. Morgan

 Assistant District Attorney on appeal

1201 Franklin St.

Suite 600

Houston, Texas 77002

Appellant:

Joel Navarro

Counsel for the Appellant:

Scott Shearer

— Counsel at trial and on appeal

92 Preston, Suite 200

Houston, Texas 77002

Trial Judge:

Jean Spradling Hughes

 Presiding judge

ii
Table of Contents

Statement Regarding Oral Argument .................................................i

Identification of the Parties .............................................................. ii

Table of Contents ................................................................................ iii

Index of Authorities .............................................................................v

Statement of the Case ..........................................................................1

Statement of Procedural History .......................................................1

Statement of Questions Presented ....................................................2

Factual and Legal Background

I. Legal misinterpretations in the trial court complicated what 

should have been an open-and-shut case......................................................3

II. In a published opinion, a divided panel of the court of appeals 

acquitted the appellant of Class A DWI and remanded for a new trial 

on Class B DWI. A dissenter would have acquitted on Class A DWI 

but affirmed the Class B conviction. The State believes the dissenter 

was correct. ................................................................................................................5

Question One

Does a trial court commit error by instructing the jury with a 

statutory definition if the statutory text “has a variable meaning in the 

eyes of the jury,” as the panel majority held? ...................................................6

I. The majority used irrelevant case law as a basis to ignore 

binding precedent. ..................................................................................................7

II. The majority’s conclusion that a trial court errs to instruct a 

jury using statutory text if that text “has a variable meaning in the 

eyes of the jury” is inconsistent with prior case law. ............................ 10

III. The majority’s rule puts trial courts in a nearly impossible 

situation of determining when instructing the jury with a nonstatutory definition is required, and when instructing the jury with 

a non-statutory definition is error................................................................. 13

iii
Question Two

Is an allegation that elevates a Class B DWI to a Class A DWI (such as a 

prior DWI conviction or an alcohol concentration of 0.15 or greater) a 

punishment enhancement, as the trial court treated it, or an essential 

element of the Class A offense, as the Court of Appeals held? ............... 15

I. Under Calton, these additional allegations are elements of Class 

A DWI, not punishment enhancements....................................................... 17

II. The case law shows that it is very common for courts to treat 

these elements as punishment enhancements. ....................................... 18

III. This practice is never questioned because, procedurally, it is 

almost impossible to raise it on appeal. This Court should grant 

review of this case because it presents an extremely uncommon 

opportunity for this Court to educate the bench and bar on this 

subject. ...................................................................................................................... 21

Conclusion .......................................................................................... 23

Certificate of Compliance and Service........................................... 24

Appendix A

Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 

(Tex. App.—Houston [14th Dist.] July 7, 2015) (majority op.)

Appendix B

Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 

(Tex. App.—Houston [14th Dist.] July 7, 2015) (Frost, C.J., dissenting)

iv
Index of Authorities

Cases

Apprendi v. New Jersey

530 U.S. 466 (2000)................................................................................................. 17

Calton v. State

176 S.W.3d 231 (Tex. Crim. App. 2005)....................................................17, 18

Casey v. State

215 S.W.3d 870 (Tex. Crim. App. 2007)........................................................... 10

Clift v. State

05-13-00324-CR, 2014 WL 1856842 (Tex. App.—

Dallas May 7, 2014, no pet.) 

(mem. op. not designated for publication)..................................................... 20

Couch v. State

13-13-00389-CR, 2014 WL 585849 (Tex. App.—

Corpus Christi Feb. 13, 2014, pet. ref’d) 

(mem. op. not designated for publication)..................................................... 20

Coward v. State

12-13-00114-CR, 2013 WL 3788162 (Tex. App.—

Tyler July 17, 2013, no pet.)

(mem. op. not designated for publication)..................................................... 20

Dromgoole v. State

___ S.W.3d ___, 01-13-00931-CR, 2015 WL 3522990 (Tex. App.—

Houston [1st Dist.] June 4, 2015, no. pet. h.)................................................. 18

Flowers v. State

220 S.W.3d 919 (Tex. Crim. App. 2007)........................................................... 19

Geesa v. State

820 S.W.2d 154 (Tex. Crim. App. 1991)........................................................... 11

Grotti v. State

273 S.W.3d 273 (Tex. Crim. App. 2008)........................................................... 12

Haeker v. State

571 S.W.2d 920 (Tex. Cirm. App. 1978).........................................................7, 8

v
Kirsch v. State

357 S.W.3d 645 (Tex. Crim. App. 2012)....................................................12, 14

Medford v. State

13 S.W.3d 769 (Tex. Crim. App. 2000).................................................................8

Middleton v. State

125 S.W.3d 450 (Tex. Crim. App. 2003)..............................................................8

Navarro v. State

___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 (Tex. App.—

Houston [14th Dist.] July 7, 2015)............................................................2, 7, 16

Ouellette v. State

03-08-00566-CR, 2010 WL 3377774 (Tex. App.—

Austin Aug. 27, 2010) aff'd, 353 S.W.3d 868 (Tex. Crim. App. 2011)

(mem. op. not designated for publication)..................................................... 21

Paulson v. State

28 S.W.3d 570 (Tex. Crim. App. 2000).............................................................. 11

Reeves v. State

420 S.W.3d 812 (Tex. Crim. App. 2013)........................................................... 10

Riddle v. State

888 S.W.2d 1 (Tex. Crim. App. 1994)....................................................................7

State v. Mays

967 S.W.2d 404 (Tex. Crim. App. 1998)..............................................................8

State v. Morgan

160 S.W.3d 1 (Tex. Crim. App. 2004)................................................................. 21

Statutes

TEX. PENAL CODE § 49.01...................................................................................................6

TEX. PENAL CODE § 49.04 ............................................................................................... 17

TEX. PENAL CODE § 49.09................................................................................................ 17

vi
Statement of the Case

The appellant was charged by information with driving while 

intoxicated, with a blood-alcohol concentration of 0.15 or greater. (CR 

8). The appellant pled not guilty. (3 RR 10). A jury found the appellant 

guilty of driving while intoxicated. (CR 125, 126). The trial court treated 

the question of whether the appellant’s blood-alcohol concentration was 

greater than 0.15 as a punishment-phase question, and the trial court 

found the allegation true. (3 RR 389). The trial court sentenced the 

appellant to one year’s confinement in the county jail, but suspended 

that sentence and ordered that the appellant serve two years’ 

community supervision. (CR126). The trial court certified the 

appellant’s right of appeal, and the appellant filed a timely notice of 

appeal. (CR 133, 136). 

Statement of Procedural History

On May 28, 2015, in a published opinion and over a dissent, a

panel of the Fourteenth Court of Appeals found the evidence insufficient 

regarding Class A driving while intoxicated and remanded the case for a

new trial on Class B driving while intoxicated. The dissenter also found 

the evidence insufficient regarding the Class A conviction but would 

1
have affirmed the conviction for the Class B offense and remanded for a 

new punishment hearing. On June 5, the State filed a timely motion for 

rehearing. On July 7, the panel issued substitute majority and dissenting 

opinions that were substantially the same as the May 28th opinions, and 

denied the State’s motion for rehearing. See Navarro v. State, ___ S.W.3d 

___, 14-13-00706-CR, 2015 WL 4103565 (Tex. App.—Houston [14th 

Dist.] July 7, 2015) (majority op. and op. of Frost, C.J., dissenting)

(opinions included in appendix).

Statement of Questions Presented

Question One: Does a trial court commit error by instructing the jury 

with a statutory definition if the statutory text “has a variable meaning 

in the eyes of the jury,” as the panel majority held? 

Question Two: Is an allegation that elevates a Class B DWI to a Class A 

DWI (such as a prior DWI conviction or an alcohol concentration of 0.15 

or greater) a punishment enhancement, as the trial court treated it, or 

an essential element of the Class A offense, as the Court of Appeals held?

2
Factual and Legal Background

I. Legal misinterpretations in the trial court complicated 

what should have been an open-and-shut case. 

On Christmas, 2011, the appellant was driving his truck on I-10 

when, at 65-70 miles per hour, he made an abrupt left turn and crashed 

into the median. (3 RR 16, 68-61). The appellant and his passenger were 

both taken to the hospital; blood tests showed them both to be 

intoxicated. (3 RR 253-55, 345, 354). 

At the appellant’s DWI trial, the State introduced the results of a 

blood-plasma test conducted at the hospital. (3 RR 231). Blood plasma is 

produced by seperating blood into its constituent parts. During this 

process, any alcohol that was in the blood will remain with the plasma, 

while the blood cells will be separated out. Thus, any testing performed 

on the plasma will yield a higher alcohol concentration than if the test 

had been performed on the whole, unseparated blood sample. For an 

ordinary, healthy person, a blood-plasma test will show an alcohol 

concentration about 16% higher than would a test of the whole blood. 

(3 RR 231). The State’s expert witness testified that the results of the 

hospital’s tests showed that the appellant’s blood plasma had an alcohol 

concentration of .158, which meant that that his whole, unseperated

3
blood probably had an alcohol concentration of about .132. (3 RR 231, 

253-55). 

The trial prosecutor argued that, because the Penal Code did not 

define “blood,” the jury could use the blood-plasma result as a basis for 

its verdict. (See 3 RR 237-40, 383-84) (citing Reidwig v. State, 981 S.W.2d 

399 (Tex. App.—San Antonio 1998, pet. ref’d). However, when the case 

was submitted to the jury it was only submitted as a Class B offense, 

which required a showing only of an alcohol concentration of 0.08 or 

greater, thus the extrapolated blood result would have been more than 

adequate to prove intoxication. The jury found the appellant guilty of 

Class B DWI. (See CR 120-125).

During the punishment phase, without discussion or argument, 

the trial court announced that it “would find the enhancement 

paragraph true as to the blood alcohol level .15 or greater.” (3 RR 389). 

The trial court assessed punishment and entered a judgment of guilt for 

Class A DWI. (CR 126 (judgment reflecting conviction for “DWI 

BAC>=0.15”)). 

4
II. In a published opinion, a divided panel of the court of 

appeals acquitted the appellant of Class A DWI and 

remanded for a new trial on Class B DWI. A dissenter 

would have acquitted on Class A DWI but affirmed the 

Class B conviction. The State believes the dissenter was 

correct.

On direct appeal, a divided panel of the Fourteenth Court of 

Appeals made several holdings: 

1) In a prosecution for Class A driving while intoxicated with a

blood-alcohol concentration greater than 0.15, the allegation that 

the defendant’s blood-alcohol concentration exceeded 0.15 was an 

element of the offense rather than a punishment-phase 

enhancement;

2) Because “alcohol concentration” had to be based on blood, not 

blood plasma, the evidence was insufficient to show the 

appellant’s blood-alcohol concentration was greater than 0.15, 

thus the court issued an acquittal on the Class A charge;

3) The evidence was sufficient to support the conviction for Class B 

driving while intoxicated; but

4) The trial court erred by not modifying the statutory definition of 

“alcohol concentration” in the jury charge to clarify that “blood” 

meant “whole blood,” and the appellant was harmed by this error, 

thus the court remanded for a new trial on the Class B charge.

In a dissent, Chief Justice Frost agreed with holdings 1-3, but 

disagreed with holding 4 and would have affirmed the appellant’s 

conviction for Class B DWI. Navarro, No. 14-13-00706-CR, Dissenting 

Slip Op. at 8 (Frost, C.J., dissenting). Chief Justice Frost argued that the 

trial court’s instruction to the jury was correct because it tracked the 

5
language of the statute, and, even if it was incorrect, the appellant was 

not harmed. Ibid. 

In this petition, the State asks this Court to review holdings 1 and 

4. Holding 4 is an unprecedented departure from the well-established 

rule that a trial court does not err to use statutory language to instruct a 

jury. Regarding holding 1, the State believes the court of appeals is 

correct, but the holding regards an important question of state law that 

should be decided by this Court. 

Question One

Does a trial court commit error by instructing the jury with a 

statutory definition if the statutory text “has a variable meaning in 

the eyes of the jury,” as the panel majority held?

Because the parties had been arguing about the distinction 

between blood and blood plasma throughout the trial, the appellant 

requested the trial court instruct the jury that “[a]lcohol concentration 

means the number of grams of alcohol per 100 milliliters of whole

blood.” (3 RR 367 (emphasis added)). This proposed instruction consists 

of the text of Penal Code section 49.01(1)(B), plus the word “whole.” See 

TEX. PENAL CODE § 49.01(1)(B). The trial court rejected the appellant’s 

6
proposed instruction and instead instructed the jury using the 

unmodified statutory text. (3 RR 367; CR 12).

The court of appeals held that the trial court’s instruction was 

erroneous. See Navarro, Dissenting Slip Op. at 2 (Frost, C.J., dissenting) 

(“In an apparent first in the history of Texas jurisprudence, the majority 

holds the trial court erred in defining a term for the jury using the same 

unambiguous language the Texas Legislature used to define the term in 

the statute establishing the charged offense.” ). 

I. The majority used irrelevant case law as a basis to ignore 

binding precedent. 

The majority began its discussion by acknowledging binding 

precedent holding that a trial court does not err by submitting a jury 

charge that tracks the language of the statute, which is what the trial 

court did in this case. See Navarro, Slip Op. at 16 (citing Riddle v. State, 

888 S.W.2d 1, 8 (Tex. Crim. App. 1994)). The majority then noted, 

however, that this Court has “not always adhered to” that rule. Slip Op. at 

17. 

For examples of how this Court has “not always adhered to” the 

general rule, the majority cited to Haeker v. State, 571 S.W.2d 920 (Tex. 

Cirm. App. 1978), and State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 

7
1998). Slip Op. at 17. Those cases dealt with the issue of when a 

charging instrument must allege more than the statutory text in order to 

meet constitutional notice requirements. See Haeker, 571 S.W.2d at 921 

(in cruelty-to-animals prosecution, allegation that defendant “tortured” 

an animal was insufficient to allow defendant to prepare defense); Mays, 

967 S.W.2d at 407-09 (barratry indictment that tracked statutory 

language provided sufficient notice). 

Haeker and Mays have no application here. Those cases addressed

the State’s constitutional obligation to provide pre-trial notice to 

defendants so that they may prepare a defense. This case dealt with the 

trial court’s statutory obligation to instruct the jury on “the law 

applicable to the case” so that it can render a lawful verdict. There is no 

connection between those areas of the law, and the majority opinion 

erred to use Haeker and Mays as a basis for ignoring clearly established 

precedent. 

The majority also relied on Medford v. State, 13 S.W.3d 769 (Tex. 

Crim. App. 2000), and Middleton v. State, 125 S.W.3d 450 (Tex. Crim. 

App. 2003). Slip Op. at 17. In Middleton, this Court granted review to 

determine whether it was necessary to instruct the jury with a nonstatutory definition of “probable cause,” but the Court did not answer 

8
that question because, upon closer examination, it was apparent that 

“the jury did not need the instruction.” 125 S.W.3d at 451 (plurality op.). 

Moreover, whatever Middleton said is not binding because it was a 

plurality opinion.

In Medford, this Court was faced with the question of whether 

“arrest,” as that term is used in Penal Code section 38.08 (escape), was a 

statutorily undefined term that a jury was free to define on its own. 13 

S.W.3d at 771. This Court held that “arrest” was an exception to the 

general rule because it was a technical term “possessing a long, 

established history in the common law,” and jurors ought not define it 

on their own. Id. at 772. This Court created a non-statutory definition “in 

order to properly instruct a jury.” Id. at 772-74. 

Medford is more applicable to this case than the other three cases 

cited by the majority, but it still is far from controlling. As Chief Justice 

Frost observed in dissent, Medford did not involve a holding that a trial 

court abused its discretion by failing to submit a non-statutory 

instruction. Dissenting Slip Op. at 3 n.5. Moreover, unlike “arrest,” 

“blood” is not a technical term or a term that has been defined through 

centuries of common law. Ibid. 

9
In short, the majority noted that according to binding precedent 

the trial court was correct to instruct the jury using statutory language; 

the majority then proceeded to ignore that binding precedent based on 

the authority of two irrelevant cases, a plurality opinion that explicitly 

refused to address the question at issue in this case, and an opinion that 

touched on some of the issues in this case but which made no holding 

requiring the outcome the majority reached. This Court should not allow 

a lower court to so lightly toss aside the well-developed rule that a trial 

court does not err to instruct the jury using statutory language. See e.g., 

Casey v. State, 215 S.W.3d 870, 887 (Tex. Crim. App. 2007) (holding 

instruction that tracked statutory language was not erroneous, and 

“declin[ing] appellant's invitation to act as a super-legislature and 

rewrite this section of the Penal Code.”).

II. The majority’s conclusion that a trial court errs to instruct 

a jury using statutory text if that text “has a variable 

meaning in the eyes of the jury” is inconsistent with prior 

case law.

After discussing Haeker, Mays, Medford, and Middleton, the 

majority proceeded to quote Reeves v. State, 420 S.W.3d 812 (Tex. Crim. 

App. 2013), for the proposition that “it is the function of the [jury] 

charge to lead and to prevent confusion.” Slip. Op. at 17. The majority

10
then stated: “A charge will not prevent confusion if the statutory text on 

which it is based has a variable meaning in the eyes of the jury.” Ibid.

This is an extremely broad assertion that, as a statement of what 

constitutes reversible error, must surely be wrong. A typical jury charge 

will contain dozens of words and terms that will have “variable 

meaning” in the eyes of the jury.

The most obvious example is the burden of proof: “beyond a 

reasonable doubt.” In Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 

1991), based on concerns that juries would be confused by what was 

meant by “beyond a reasonable doubt,” this Court mandated a nonstatutory six-paragraph definition of the term. Geesa, 820 S.W.2d at 163.

This Court has since overruled that holding, and jurors are allowed to 

adopt their own meanings of “beyond a reasonable doubt,” despite the 

near certainty that this will produce variable meaning from one juror to 

the next. See Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)

(overruling Geesa and stating that it is the “better practice” to give no 

definition of “reasonable doubt”). 

Indeed, contra the majority’s interpretation of Reeves, this Court

has used the fact that jurors might give variable meanings to a word as a 

reason not to define it in the jury charge. In Kirsch v. State, 357 S.W.3d 

11
645 (Tex. Crim. App. 2012), a DWI case, the trial court instructed the 

jury on a non-statutory definition of “operate” that was gleaned from 

case law. Kirsch, 357 S.W.3d at 648. This Court held that this was error, 

because “operate” was a common term that the jury was free to define 

on its own, therefore the trial court’s decision to select a definition that 

brought attention to certain evidence — even if that definition was 

legally correct — was an impermissible comment on the weight of the 

evidence. Id. at 649-51. 

In this case, the majority distinguished Kirsch by noting that 

unlike “operate,” “‘blood’ is capable of only one meaning under the 

Penal Code.” Slip. Op. at 19. That statement was based on an earlier part 

of the majority’s opinion where, in conducting a sufficiency analysis, it 

looked to an opinion from this Court, a dictionary, medical texts, and an 

inapplicable section of the Penal Code to determine what is meant by 

“blood.” See Slip. Op. at 14-15. The State wholeheartedly agrees that, for 

sufficiency-review purposes, the use of non-statutory sources was 

appropriate. See Grotti v. State, 273 S.W.3d 273, 282-83 (Tex. Crim. App. 

2008) (approving of lower court’s use of Health & Safety Code definition 

of “death” for sufficiency review). 

12
Where the majority went wrong, however, was in its belief that the

inverse of Kirsch must be true. In Kirsch, because the term “operate” was 

susceptible to multiple definitions, the trial court erred in submitting a 

non-statutory definition; in this case, because “blood” is not susceptible 

to multiple definitions, the majority believed that the trial court erred in 

not submitting a non-statutory definition. However, the inverse of a true

proposition is not always true, and the majority provided no reason why 

the inverse of Kirsch must be true here.

III. The majority’s rule puts trial courts in a nearly impossible 

situation of determining when instructing the jury with a 

non-statutory definition is required, and when instructing 

the jury with a non-statutory definition is error. 

Combining the majority’s holding with Kirsch creates the 

following rule: If a term that is not defined in the statute is susceptible 

to only one definition, the trial court errs by not instructing the jury on 

that definition, but if the term is susceptible to multiple definitions, the 

trial court errs to instruct the jury on any of those definitions. The State 

believes this needlessly puts trial courts at risk of reversible error, and 

will result in jury instructions with no basis in the law.

Under the majority’s rule, if a party requests a non-statutory 

definition of a statutory term, a trial court must answer two questions, 

13
and it will commit error if it gets either question incorrect: (1) Whether 

the proffered definition is legally correct; and (2) Whether it defines a 

term that is susceptible to multiple definitions. Seldom will the answers 

to these questions be obvious, and there is no obligation on the 

requesting party to advise the trial court of the law.1 As Kirsch made 

apparent, determining whether a term is susceptible to multiple 

definitions can be a complex analysis. See Kirsch, 357 S.W.3d at 650.

Analyzing the new obligation that the majority created for trial 

courts, it is apparent that it will heavily favor defendants over the State. 

Faced with reversible error from so many directions, trial courts will 

probably respond to the obligations created by the majority’s opinion by 

granting requested non-statutory instructions for defendants but 

denying them for the State. This is because jury-charge rulings that go 

against the State can never create a reversal. The majority’s opinion will

encourage defendants to proffer non-statutory definitions, and 

incentivize trial courts to instruct on those definitions even if they are 

legally suspect.

1 The appellant provided no legal argument when he requested the “whole blood” 

instruction in this case. (3 RR 366). 

14

 
The majority’s holding creates bad incentives for trial courts, has 

no basis in the law, and directly contradicts binding precedent from this 

Court. This Court should grant review, reverse the Court of Appeals, and 

re-affirm the well-established rule that a trial court does not err to 

instruct the jury using statutory language. 

Question Two

Is an allegation that elevates a Class B DWI to a Class A DWI (such 

as a prior DWI conviction or an alcohol concentration of 0.15 or 

greater) a punishment enhancement, as the trial court treated it, or 

an essential element of the Class A offense, as the Court of Appeals 

held? 

The appellant was charged with DWI, enhanced by an allegation 

that an analysis of a specimen of his blood showed an alcohol 

concentration of 0.15 or greater. (CR 8). However, whether the 

appellant’s blood alcohol concentration was 0.15 or greater was never 

submitted to the jury; the trial court made a finding on the matter 

during the punishment phase. (CR 120-25; 3 RR 389). In making this 

finding, the trial court stated that it was finding the 0.15 allegation 

“true,” indicating that it viewed the 0.15-allegation as a punishmentphase enhancement (such as a deadly-weapon finding) rather than an 

element of the offense.

15
On appeal, the appellant did not challenge the sufficiency of the 

evidence. The State, however, made a confession of unassigned error, 

pointing out that the evidence was insufficient to show that the 

appellant’s blood-alcohol concentration was 0.15 or greater. (State’s 

Appellate Brief at 17-20). As part of this confession, the State argued 

that it was “almost certainly error” for the trial court to treat the 0.15 

allegation as a punishment-phase enhancement rather than as an 

element of the offense. (State’s Appellate Brief at 20 n.1).

The majority opinion explicitly agreed with the State that the 0.15 

allegation was an element of the offense that should have been 

submitted to the jury during the guilt phase; the dissenting opinion 

implicitly agreed with that position. See Navarro, Slip. Op. at 11-13 

(analyzing issue), Dissenting Slip Op. at 8 (concluding that evidence was 

insufficient regarding Class A offense). The State believes this issue is 

important enough, and that cases presenting it on appeal are rare 

enough, that this Court should grant review in order to affirm and 

promulgate the court of appeals’s holding. 

16
I. Under Calton, these additional allegations are elements of 

Class A DWI, not punishment enhancements.

This issue is, legally speaking, very easy and straight-forward. 

Section 49.04(d) states that DWI, ordinarily a Class B misdemeanor, 

becomes a Class A misdemeanor if it is shown at trial that an analysis of 

a specimen of the defendant’s blood, breath, or urine showed an alcohol 

concentration of 0.15 or higher. TEX. PENAL CODE § 49.04(d). Any fact that 

elevates the degree of an offense is an essential element of the offense, 

and must be proven during the guilt phase. Calton v. State, 176 S.W.3d 

231, 233-36 (Tex. Crim. App. 2005); see also Apprendi v. New Jersey, 530 

U.S. 466, 490 (2000) (other than fact of prior conviction, any fact that 

increases the maximum punishment for an offense must be proven to a 

jury beyond a reasonable doubt). 

Therefore, the 0.15 allegation was an essential element of Class A 

DWI and should have been submitted to the jury during the guilt phase 

of this trial. The same principle also means that the fact of a single prior 

DWI conviction, which elevates a Class B offense to a Class A offense, see

TEX. PENAL CODE § 49.09(a), should be submitted to the jury during the 

guilt phase as well. See Calton, 176 S.W.3d at 235 (if prior conviction is 

element of offense, allegation of prior conviction must be read to jury in 

17
arraignment and issue must be submitted during guilt phase). Pleading 

and proving these additional elements during the guilt phase should be 

no different from pleading and proving the value of stolen property in a 

theft case. See id.at 235.

II. The case law shows that it is very common for courts to

treat these elements as punishment enhancements. 

That the question is easy to answer as a matter of law does not 

mean that the question is unimportant. The State has very good reason 

to believe that treating the 0.15 allegation and the allegation of a single 

prior DWI conviction as a punishment-phase enhancement rather than a 

guilt-phase element is a common practice in Texas.

2

2 At oral argument in this case, the State’s appellate counsel represented to the 

Fourteenth Court that six of Harris County’s fifteen misdemeanor courts treat these 

allegations as punishment-phase enhancements. A week after the Fourteenth 

Court’s original opinion in this case, the First Court released an opinion from 

another Harris County misdemeanor court in which the 0.15 allegation was treated 

as a punishment-phase enhancement. 

In Dromgoole v. State, ___ S.W.3d ___, 01-13-00931-CR, 2015 WL 3522990, 

(Tex. App.—Houston [1st Dist.] June 4, 2015, no. pet. h.), the First Court of Appeals 

noted in its procedural history of the case that the jury found the defendant guilty of 

DWI, and during the punishment phase “the trial court found an enhancement 

paragraph to be true.” Dromgoole, 2015 WL 3522990 at *1. In the last section of the 

opinion, though, the First Court noticed that the judgment showed “the trial court's 

finding on the State's enhancement paragraph was ‘n/a.’” Dromgoole, 2015 WL 

352290 at *14. Citing to Penal Code section 49.04(d) (the 0.15 allegation), the First 

Court noted that it was the “enhancement paragraph” that elevated the offense from 

a Class B to a Class A, thus without the finding of true on the “enhancement 

paragraph” Dromgoole’s sentence would be illegal. Ibid. The First Court then, on its 

own motion, modified the judgment to show a finding of “true” to the “enhancement 

paragraph.” Ibid. The First Court’s opinion is nearly nine thousand words long, and 

18

 
This is not just a Harris County problem. In Flowers v. State, 220 

S.W.3d 919 (Tex. Crim. App. 2007), a Denton County case, the defendant 

was charged with DWI and the State alleged a prior conviction that 

enhanced the offense to a Class A misdemeanor. Flowers, 220 S.W.3d at 

920.3 The issue of guilt on basic DWI was tried to a jury, but the 

“enhancement paragraph” was found “true” by the trial court during the 

punishment phase. Ibid. Both the Second Court of Appeals and this Court 

issued opinions addressing the sufficiency of the evidence to prove the 

“enhancement paragraph,” but no one ever pointed out that, under 

Calton, the allegation of a prior conviction was actually an essential 

element that should have been tried to the jury in the guilt phase.

A Westlaw search shows that it is common and widespread across 

the state to treat as punishment-phase enhancements allegations that 

elevate DWI from Class B to Class A, and for this matter to go wholly 

West has given it fifty-four headnotes, yet at no point does anyone seem to have 

questioned the treatment of the 0.15 allegation as an “enhancement” paragraph. 

Indeed, the First Court’s modification of the judgment is an implicit (though 

probably unconsidered) endorsement of the practice.

3 The opinion does not explicitly state that the prior conviction was used to enhance 

the offense to a Class A misdemeanor, but it notes that Flowers was sentenced to 270 

days in jail from a misdemeanor court, which is possible only with a Class A 

conviction. 

19

 
unnoticed. See, e.g., Couch v. State, 13-13-00389-CR, 2014 WL 585849, at 

*3 (Tex. App.—Corpus Christi Feb. 13, 2014, pet. ref’d) (mem. op. not 

designated for publication) (“The jury found Couch guilty of DWI. See 

[Penal Code] § 49.04(a). During the punishment phase of trial, Couch 

pleaded true to an enhancement paragraph, which alleged a prior 

conviction for DWI. See id. § 49.09(a).”); Coward v. State, 12-13-00114-

CR, 2013 WL 3788162, at *1, *4 (Tex. App.—Tyler July 17, 2013, no pet.) 

(mem. op. not designated for publication) (discussing sufficiency to 

support “the jury's finding of guilt” and “trial judge’s” finding of “true” to 

“enhancement allegation” of prior DWI conviction); Clift v. State, 05-13-

00324-CR, 2014 WL 1856842, at *5 (Tex. App.—Dallas May 7, 2014, no 

pet.) (mem. op. not designated for publication) (defendant convicted for 

Class A DWI based on alcohol concentration of 0.15, but application 

paragraphs of guilt-phase jury charge related only to Class B DWI; trial 

court assessed punishment); Fletcher v. State, 08-13-00043-CR, 2014 

WL 4922625, at *1 (Tex. App.—El Paso Sept. 30, 2014, no pet.) 

(“Appellant was charged with ‘DWI-[misdemeanor] repetition.’ The

charging instrument also contained an enhancement paragraph 

describing an additional final conviction for DWI. Appellant pleaded not 

guilty to the charged offense. The jury found Appellant guilty as charged. 

20
At punishment, Appellant entered a plea of ‘true’ to the enhancement 

paragraph.”); Ouellette v. State, 03-08-00566-CR, 2010 WL 3377774, at 

*1 (Tex. App.—Austin Aug. 27, 2010), aff'd, 353 S.W.3d 868 (Tex. Crim. 

App. 2011) (mem. op. not designated for publication) (“A jury found 

appellant Marie Louise Ouellette guilty of driving while intoxicated. See

Tex. Penal Code Ann. § 49.04(a) (West 2003). The trial court found the 

enhancement paragraph true, see id. § 49.09(a).”). 

III. This practice is never questioned because, procedurally, it 

is almost impossible to raise it on appeal. This Court 

should grant review of this case because it presents an 

extremely uncommon opportunity for this Court to 

educate the bench and bar on this subject.

One reason this issue is never questioned is because it is very 

difficult to raise it as an appellate issue. Procedurally, there is no way for 

the State to appeal a trial court’s decision to treat the 0.15 allegation or 

the fact of a single prior DWI conviction as a punishment-phase 

enhancement. State v. Morgan, 160 S.W.3d 1, 3-5 (Tex. Crim. App. 2004)

(where State plead prior DWI conviction in effort to elevate DWI from 

Class B to Class A misdemeanor but trial court issued pre-trial ruling 

that it would treat allegation as punishment-phase enhancement, State’s 

effort to appeal decision was impermissible interlocutory appeal). And if 

21
defendants prefer these “enhancement” allegations to be part of the 

punishment phase, they would not complain at the trial court, leaving 

the matter unreviewable on appeal. It would be altogether possible for 

this to be a common practice throughout the state without it yet having 

attracted the attention of an appellate court. 

The State believes this is an important question of state law that is 

being mishandled often and widely throughout the state. However, 

because defendants do not complain about it in the trial court and the 

State is barred from raising the issue, the matter has never been 

addressed by an appellate court. This case provides this Court an 

opportunity to give guidance on this subject so that misdemeanor DWI

trials in Texas will be conducted in a more lawful manner.

22
Conclusion

The State asks this Court to grant discretionary review and hold 

that 1) a trial court does cannot commit reversible error by using 

definitions from the Penal Code, and 2) allegations that increase DWI 

from a Class B to a Class A offense are essential elements of Class A DWI 

and must be submitted to the jury during the guilt phase. The result of 

these holdings will be to reverse the court of appeals and affirm the 

appellants’ conviction for Class B DWI. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

713.755.5826

Texas Bar No. 24071454

23
Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word counting 

function, the portion of this brief for which Rule of Appellate Procedure 

9.4(i)(1) requires a word count contains 4,452 words.

I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

R. Scott Shearer

ShearerLegal@Yahoo.com

Lisa McMinn

State Prosecuting Attorney

information@spa.texas.gov

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

Texas Bar No. 24071454

Date: July 23, 2015

24
Appendix A

Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 

(Tex. App.—Houston [14th Dist.] July 7, 2015) (majority op.)
Reversed and Rendered in Part, Reversed and Remanded in Part, and 

Substitute Majority and Dissenting Opinions filed July 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00706-CR

JOEL NAVARRO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1836127

S U B S T I T U T E M A J O R I T Y O P I N I O N

We withdraw our opinion dated May 28, 2015, and we issue this substitute 

opinion in its place. We deny the State’s motion for rehearing.

This is an appeal from a Class A misdemeanor conviction for driving while 

intoxicated. At the trial court level, the State argued to the jury that a finding of 

intoxication under the per se theory of intoxication could be based on the alcohol 
2

content of appellant’s blood plasma rather than his whole blood. Now the State

confesses error on that point. 

At the trial court level, the trial judge failed to submit a question to the jury 

as to whether appellant’s blood alcohol level was at least 0.15 to support the Class 

A misdemeanor conviction. Now the State confesses error on that point.

At the trial court level, the State convinced the trial judge that a Class A 

misdemeanor conviction could be based on blood plasma results without regard for 

the alcohol concentration of appellant’s whole blood, and, based only on the 

unconverted blood plasma results, the trial judge made a finding that appellant had 

an alcohol concentration of at least 0.15. Now the State confesses error on that 

point.

Despite misleading both the trial judge and the jury, through both an 

improper charge and an improper closing argument, the State argues that appellant 

is not entitled to a new trial. The State believes that the judgment should be 

reformed to reflect a conviction for a Class B misdemeanor, and the case should be 

remanded for a new punishment hearing only. We disagree. We reverse and render 

a judgment of acquittal on the Class A misdemeanor, and we remand for a new 

trial on the Class B misdemeanor.

BACKGROUND

Appellant and his fiancée were involved in a single-vehicle accident, the 

cause of which was disputed at trial. Only one eyewitness testified at trial. The 

eyewitness testified that he was driving down the interstate late at night when a 

truck in front of him suddenly veered to the left and struck a concrete barrier. 

Traffic had been light at the time, it had not been raining, and there was no 
3

evidence of an obstruction in the road that would have required an evasive 

maneuver.

The truck rolled over three times and landed upright on its tires. When the 

eyewitness pulled up next to the truck, he saw appellant climbing out of the 

driver’s side window, apparently because the door had been jammed. Appellant 

crawled on the pavement towards his fiancée, who had been ejected from the truck 

during the rollover. She was unconscious, severely injured, and lying about thirtyfive feet away from where the truck had finally stopped.

Appellant told first responders that he was driving at the time of the 

accident. He explained that he and his fiancée were arguing inside the truck, that 

she grabbed the steering wheel at one point, and that he overcorrected. This story 

gradually changed over time. Appellant later claimed that his fiancée was feeling 

sick, that she slid over to be next to him, and that she accidentally hit the steering 

wheel. At another point, appellant reported that the accident happened because a 

tire blew out.

The police did not initially suspect that the accident was alcohol-related. In 

fact, the officer who questioned appellant at the scene opined in his original police 

report that appellant was not intoxicated.

There was evidence of intoxication, however. According to an emergency 

medical technician, appellant admitted that he had consumed at least four beers on 

the night of the accident. There was also blood evidence taken more than an hour

after the accident, and the evidence indicated that appellant had alcohol in his 

system.

The blood evidence was obtained at the hospital where appellant and his 

fiancée were treated. The hospital collected a vial of appellant’s whole blood, 
4

which was then placed into a centrifuge. The vial was spun, causing the blood cells 

to separate from the blood plasma. A test of the blood plasma revealed that 

appellant had a blood-alcohol concentration (“BAC”) of 0.158.1

Charges were eventually brought against appellant for driving while 

intoxicated. The charging instrument included an additional allegation that, at or 

near the time of the commission of the offense, appellant’s blood showed “an 

alcohol concentration level of at least 0.15.”

The State’s expert, William Arnold of the Houston Police Department,

testified that the concentration of alcohol is higher in blood plasma than it is in 

whole blood. The expert opined that a BAC of 0.158 in blood plasma could be 

converted to a BAC of 0.132 in whole blood. Assuming that appellant had been

eliminating alcohol from his system, instead of absorbing it, the expert believed

that appellant had a BAC of 0.133 in whole blood at the time of the accident.

Appellant did not testify at trial, but he asserted several defensive theories, 

one of which was that his fiancée had been driving when the accident occurred.

Appellant argued that his statements to first responders had been false, and that he 

had only taken the blame for the accident because he felt a duty to protect his 

fiancée.

There was affirmative evidence to support this theory. The record showed

that appellant was excluded as a contributor of a DNA sample collected from the 

driver’s side air bag. The DNA revealed a partial profile belonging to a female of 

unknown origin, who could have been the fiancée.

 

1

In this opinion, all numerical references to BAC are expressed in the same units: grams 

of alcohol per 100 milliliters of blood. We denote in each instance whether the blood at issue is 

whole blood or blood plasma.
5

Other evidence included testimony from the fiancée herself, who recovered 

from her injuries after being in a coma for nearly a month. The fiancée admitted 

that she did not remember much from the accident, but she testified that there was 

“a good chance” that she was the driver. The fiancée explained that the truck 

belonged to her, not appellant. She was possessive over the truck, and only allowed 

appellant to drive it on rare occasions. She also observed photographs of the truck 

after the accident, and said that the position of the driver’s seat would have been 

uncomfortable for appellant, who is more than a foot taller than she is and has a 

much larger frame.

The trial court instructed the jury that it could make a finding of intoxication 

in either of two ways: (1) if appellant did not have the normal use of his mental or 

physical faculties by reason of the introduction of alcohol into his body, or (2) if 

appellant had an alcohol concentration of 0.08 or more. “Alcohol concentration” 

was defined in the court’s charge as “the number of grams of alcohol per 100 

milliliters of blood.” Appellant objected to this definition because it did not specify

that the blood must be whole blood. Appellant requested that the definition be 

revised to read as follows: “the number of grams of alcohol per 100 milliliters of 

whole blood.” The trial court denied the request.

During closing arguments, the issue over blood evidence arose again when 

the prosecutor advised the jury that it was not limited by the type of blood that it 

could consider. The prosecutor said:

As you know, we have heard a lot of evidence today and we heard a 

lot about blood evidence today. I just want to draw y’all’s attention to 

the charge, that you will be given the definition of what an alcohol 

concentration is and that definition is the number of grams of alcohol 

per 100 milliliters of blood. You won’t find anywhere in here in the 

law where it needs to be whole blood or plasma blood. This is the law 

y’all follow.
6

Appellant objected to this argument as a misstatement of law. He explained,

“The law requires whole blood.” But the trial court overruled the objection. The 

prosecutor later expanded on her argument, saying directly and without objection 

that the jury could find that appellant was intoxicated based solely on the testing of 

his blood plasma.

The jury convicted appellant of driving while intoxicated, but it did not 

make the additional finding that he had “an alcohol concentration level of at least 

0.15,” as had been alleged in the charging instrument. The trial court did not 

submit that issue in the jury charge.

Appellant elected to have the trial court assess his punishment. No new 

evidence was offered during this phase. The trial court began the hearing by 

treating the additional allegation in the charging instrument as an enhancement 

paragraph, which the court found to be true. By making an affirmative finding that 

appellant had “an alcohol concentration level of at least 0.15,” the court applied a 

range of punishment applicable to a Class A misdemeanor, instead of a Class B 

misdemeanor, which is what appellant would have faced without the perceived 

“enhancement.”

SUFFICIENCY OF THE EVIDENCE

I. The Jury’s Finding

Appellant was charged under section 49.04(a) of the Texas Penal Code, 

which provides: “A person commits an offense if the person is intoxicated while 

operating a motor vehicle in a public place.” In his first issue, appellant contends 

that the evidence is legally insufficient to show either (1) that he was the driver of 

the truck, or (2) that he was intoxicated.
7

When reviewing the legal sufficiency of the evidence, we examine all of the 

evidence in the light most favorable to the verdict and determine whether a rational 

trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 

2013). The evidence is insufficient when the record contains no evidence, or 

merely a “modicum” of evidence, probative of an element of the offense. See 

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Although we consider everything presented at trial, we do not reevaluate the 

weight and credibility of the evidence or substitute our judgment for that of the fact 

finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Because the jury is the sole judge of the credibility of witnesses and of the weight 

given to their testimony, any conflicts or inconsistencies in the evidence are 

resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. 

Crim. App. 2000). Our review includes both properly and improperly admitted 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

also consider both direct and circumstantial evidence, as well as any reasonable 

inferences that may be drawn from the evidence. Id. Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 

9, 13 (Tex. Crim. App. 2007).

A. Driver

Appellant acknowledges that he initially admitted to first responders that he 

was driving the truck at the time of the accident. He suggests, however, that his

admissions must be disregarded because he was actually lying to protect his 

fiancée. 
8

We do not agree that the admissions must be disregarded. The jury was free 

to believe appellant’s original statements, and under the applicable standard of 

review, those statements must be credited because they support the jury’s verdict.

See Guess v. State, 419 S.W.3d 361, 366 (Tex. App.—Tyler 2010, pet. ref’d) 

(holding that the jury was entitled to believe the defendant’s initial statement to 

police that he was the one who drove off the road).

Appellant’s admissions are also corroborated by other evidence. For 

instance, blood was found on the driver’s side headrest, but unlike the sample that 

was collected from the driver’s side air bag, DNA testing revealed that a male of 

unknown origin had contributed the blood. Because appellant was the only male in 

the vehicle, the jury could have reasonably believed that appellant was the 

contributor, and that the blood transferred to the headrest because appellant had 

been sitting in the driver’s seat.

Additionally, an eyewitness testified that he saw appellant climbing out of 

the driver’s side window immediately after the accident. For the same reason as 

before, the jury could have inferred that appellant was exiting from that side 

because he had previously been driving. Cf. Dickson v. State, 642 S.W.2d 185, 189 

(Tex. App.—Houston [14th Dist.] 1982, pet. ref’d) (evidence supported a finding 

that the defendant had been driving a vehicle when the defendant was seen 

emerging from the driver’s side immediately after the vehicle was stopped).

We do not doubt that the jury could have made the opposite finding that 

appellant was merely a passenger at the time of the accident. Appellant certainly 

produced evidence that created a fact issue on this point. But in such 

circumstances, it is not the role of this court to determine which evidence the jury 

should have believed. See Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 

1984). Viewing the evidence in the light most favorable to the jury’s verdict, we 
9

conclude that a rational finder of fact could have determined beyond a reasonable 

doubt that appellant was driving the truck at the time of the accident.

B. Intoxicated

The jury received the statutory definition of “intoxicated,” which has two 

alternative meanings: “(A) not having the normal use of mental or physical 

faculties by reason of the introduction of alcohol . . . into the body; or (B) having 

an alcohol concentration of 0.08 or more.” See Tex. Penal Code § 49.01(2). We 

have described these meanings as providing alternative methods of proving that a 

person is intoxicated. See Bradford v. State, 230 S.W.3d 719, 721–22 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). The two methods are known, respectively, as 

the impairment theory of intoxication and the per se theory of intoxication. Id. 

Because the two methods of proof are not mutually exclusive, evidence offered 

under the per se theory can also support a finding that a person is impaired. See 

Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App. 2012). As indicated 

above, proof under the per se theory requires an alcohol concentration expressed in 

grams of alcohol per 100 milliliters of blood. See Tex. Penal Code § 49.01(1)(B).

Appellant contends that the evidence is insufficient to show that he was 

intoxicated, citing multiple reasons. He points out first that an investigating officer 

originally reported that appellant was not intoxicated. Along this same track, 

appellant refers to testimony that field sobriety tests were never administered on 

him, that he was never found to have been slurring his words, and that he was 

actually found to be alert and oriented immediately after the accident.

On a different track, appellant asserts that the blood evidence failed to meet 

certain standards. Appellant complains that the expert who calculated the BAC of 

his whole blood used a conversion ratio based on a scientific average, rather than a 

consideration of appellant’s individual characteristics. Appellant points out that 
10

conversions depend heavily on the health of the person, and if his health were 

shown to be outside the average, then a certain conversion would have established 

that he was not intoxicated.

The expert’s testimony was primarily used to prove that appellant was 

intoxicated under the per se theory. Even if we were to conclude that the expert’s 

methodology was inexact, the conviction would still be supported if there were

legally sufficient evidence offered under the impairment theory. We conclude that 

the record contains such evidence.

The jury heard that appellant admitted to having consumed at least four 

beers on the night of the accident. Thus, there is some proof that alcohol was 

introduced into appellant’s body. The jury could have reasonably determined that 

the accident occurred because appellant lost the normal use of his faculties by 

reason of that introduction.

The absence of certain environmental factors supports that implied finding. 

The record shows that there were few cars on the road, and that it had not been 

raining. There is also no evidence of an obstacle in the road that would have 

required a sudden turn.

There was some testimony that the accident could have occurred for reasons 

other than intoxication: appellant may have overcorrected, his fiancée may have 

accidentally hit the steering wheel, or a tire may have blown out. But the jury was 

free to disbelieve this evidence and conclude that appellant was impaired by his 

consumption of alcohol. We conclude that there is legally sufficient evidence of 

appellant’s intoxication, and that a rational jury could have found every element of 

the offense beyond a reasonable doubt. See Lorenz v. State, 176 S.W.3d 492, 495 

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (concluding that the evidence 

was sufficient to prove the defendant’s intoxication when, among other factors, 
11

there was evidence that the defendant admitted to having consumed portions of 

three alcoholic beverages).

II. The Trial Court’s Finding

In its brief, the State makes a “Confession of Unassigned Error,” contending 

that there is legally insufficient evidence to support the trial court’s finding that 

appellant had “an alcohol concentration level of at least 0.15.” The State bases this 

confession on authority that the statutory meaning of “blood” is restricted to whole 

blood, as appellant argued at trial, and there is no evidence that the BAC of 

appellant’s whole blood was at least 0.15. Even if there were legally sufficient 

evidence, the State asserts that the trial court should not have made its finding 

because appellant’s alcohol concentration level was an element of an offense, and 

therefore, it should have been submitted to the jury during the guilt-innocence

phase of trial.

Appellant did not respond to the State’s confession in his reply brief, but we 

may still address an unassigned error if it was preserved below. See Sanchez v. 

State, 209 S.W.3d 117, 120–21 (Tex. Crim. App. 2006). Because a defendant need 

not preserve error as to a claim that the evidence is insufficient to prove an element 

of the offense for which he was convicted, we choose to address this issue. See 

Flanary v. State, 166 Tex. Crim. 495, 496, 316 S.W.2d 897, 898 (1958) (op. on 

reh’g).

A. Element or Enhancement?

We must first decide whether a person’s alcohol concentration level 

provides a basis for enhancement, as the trial court believed, or whether it 

functions as the element of a completely separate offense, as the State asserts on 

appeal.
12

In Calton v. State, the Court of Criminal Appeals explained the differences 

between elements and enhancements. See 176 S.W.3d 231 (Tex. Crim. App. 2005). 

The court said that the elements of an offense are defined as “the forbidden 

conduct, the required culpability, any required result, and the negation of any 

exception to the offense.” Id. at 233. A reviewing court must look to the plain 

language of the statute when discerning whether any given fact constitutes an 

element of the offense. Id.

An enhancement, by contrast, is a fact that increases the punishment range to 

a certain range above what is ordinarily prescribed for the crime that was charged. 

Id. “It does not change the offense, or the degree of the offense, of conviction.” Id.

With those considerations in mind, we now turn to the relevant statute, the 

full text of which provides as follows: 

(a) A person commits an offense if the person is intoxicated 

while operating a motor vehicle in a public place.

(b) Except as provided by Subsections (c) and (d) and Section 

49.09, an offense under this section is a Class B misdemeanor, with a 

minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section 

that at the time of the offense the person operating the motor vehicle 

had an open container of alcohol in the person’s immediate 

possession, the offense is a Class B misdemeanor, with a minimum 

term of confinement of six days.

(d) If it is shown on the trial of an offense under this section 

that an analysis of a specimen of the person’s blood, breath, or urine 

showed an alcohol concentration level of 0.15 or more at the time the 

analysis was performed, the offense is a Class A misdemeanor.

Tex. Penal Code § 49.04.

There is only a single reference in this statute to “an alcohol concentration 

level,” and it is located under Subsection (d). A plain reading of that subsection 
13

reveals that its effect is to convert an offense from a Class B misdemeanor to a 

Class A misdemeanor whenever a person charged with driving while intoxicated is 

shown to have “an alcohol concentration level of 0.15 or more.” Because this 

conversion represents a change in the degree of the offense, rather than just an 

enlargement of the punishment range for a Class B misdemeanor, we agree with 

the State that a person’s alcohol concentration level is not a basis for enhancement. 

See Calton, 176 S.W.3d at 233 (an enhancement does not change the degree of the 

offense of conviction). It is instead an element of a separate offense because it 

represents a specific type of forbidden conduct—operating a motor vehicle while 

having an especially high concentration of alcohol in the body. Cf. Mapes v. State, 

187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (stating 

that in a prosecution under Section 49.09, where the defendant is accused of 

driving while intoxicated and of having prior convictions for driving while 

intoxicated, the prior convictions are elements of the offense, and not bases for 

enhancement, in part because they affect the degree of the offense).

B. Meaning of “Blood” and Evidence of Alcohol Concentration

The evidence shows that a vial of appellant’s whole blood was obtained at 

the hospital more than an hour after the accident occurred. From that sample, the 

blood plasma was separated from the blood cells, and testing of the blood plasma 

revealed that appellant had a BAC of 0.158. This was the only blood sample that 

was ever tested for its alcohol content.

The State’s expert converted the blood plasma results using a scientifically 

accepted method and concluded that appellant’s whole blood had a BAC of 0.132. 
14

There was no testimony that appellant’s whole blood had a BAC that was 0.15 or 

more at the time the analysis was performed.

2

Based on this evidence, a finding that appellant had “an alcohol 

concentration level of 0.15 or more” could be supported only if a person’s alcohol 

concentration was measured in units of blood plasma, and not whole blood.

3

The 

statute defining “alcohol concentration” does not provide express guidance on this 

point. It does not say, for instance, whether proof must be submitted in units of 

whole blood or blood plasma. Rather, it generally provides that alcohol 

concentration means the number of grams of alcohol per 100 milliliters of “blood,” 

without specifying which type. See Tex. Penal Code § 49.01(1)(B).

The word “blood” is not defined in the Penal Code, but the Court of 

Criminal Appeals has indicated that it can only mean whole blood. In Bigon v. 

State, the court discussed the reliability of certain methods for converting the BAC 

of blood serum into the BAC of whole blood. See 252 S.W.3d 360, 368 (Tex. 

Crim. App. 2008). If our criminal statutes did not require proof of a person’s 

intoxication as expressed in units of whole blood, there would have been no need 

for the conversion testimony. Therefore, Bigon supports the conclusion that 

“blood” means “whole blood.”

 

2 We explain, infra, at note 6, that the expert’s calculations were wrong. However, even if 

the expert had correctly converted the results of appellant’s blood plasma testing, there would 

still be no showing that the BAC of appellant’s whole blood was at least 0.15 at the time the 

analysis was performed.

3 Although alcohol concentration is a separate element of the Class A misdemeanor 

offense, appellant has not argued that the trial court violated his due process rights by not 

submitting that element to the jury. Cf. Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 

2001) (applying Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In any event, we need not 

address this issue because we conclude that appellant is entitled to an acquittal of the Class A 

misdemeanor on other grounds.
15

The common definition of “blood” enforces the conclusion that the word 

encompasses more than just blood plasma. A leading dictionary describes blood as 

“the usually red fluid, consisting of plasma, red and white blood cells, etc., that 

circulates through the heart, arteries, and veins of vertebrates.” See Webster’s New 

World College Dictionary 150 (3d ed. 1996). Medical texts contain similar 

definitions. See Gray’s Anatomy [5] (15th ed. 1995) (“Blood consists of a faintly 

yellow fluid, the plasma or liquor sanguinis, in which are suspended numerous 

minute particles, the blood corpuscles, the majority of which are coloured and give 

to the blood its red tint.”).

The Legislature has also signaled its intent that blood should not be 

synonymous with blood plasma. In another statute proscribing the sale of human 

organs, the Legislature expressly provided that the term “human organ” does not 

include “hair or blood, blood components (including plasma), blood derivatives, or 

blood reagents.” See Tex. Penal Code § 48.02(a). Because the Legislature 

described plasma as a “blood component,” and juxtaposed that term with “blood” 

itself, we must conclude that plasma is a only subset of blood, and that the two 

terms are not congruent.

If we apply that same understanding to the chapter proscribing the offense of 

driving while intoxicated, then “blood” as used in the definition of “alcohol 

concentration” must not mean “blood plasma” or any other “component” of blood. 

See Tex. Gov’t Code § 311.011(b) (providing that words that have acquired a 

technical or particular meaning, whether by legislative definition or otherwise, 

should be construed accordingly). Instead, it must mean blood with all of its 

components, which is otherwise known as “whole blood.”

Because there is indeed no evidence that the BAC of appellant’s whole 

blood was ever 0.15 or greater at the time of the blood draw, we agree with the 
16

State’s confession of error that the trial court’s finding is unsupported by the 

record. If that were the only issue in the case, we would reform the trial court’s 

judgment to reflect a conviction for a Class B misdemeanor, which is supported by 

sufficient evidence as explained above, and remand for a new punishment hearing.

See Calton, 176 S.W.3d at 233; Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. 

App. 2012). Appellant has asserted other issues, however, and as we explain 

below, those issues require a new trial.

CHARGE INSTRUCTION

In his second issue, appellant contends that the trial court committed charge 

error when it denied a request to clarify the definition of “alcohol concentration” so 

that it was expressed in terms of “whole blood,” rather than just “blood.” We 

review this complaint under a two-step process, considering first whether error 

exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error 

does exist, we then analyze that error for harm under the procedural framework of 

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

I. Error

The trial court must give the jury “a written charge distinctly setting forth 

the law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14. The State 

contends that the trial court fulfilled this duty because its charge gave a definition 

of “alcohol concentration” that exactly tracked the language of Section 49.01. The 

charge provided: “‘Alcohol concentration’ means the number of grams of alcohol 

per 100 milliliters of blood.”

The Court of Criminal Appeals has previously stated that a jury charge that 

tracks the language of a statute is “a proper charge on the statutory issue.” See 

Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). This rule has been
17

expressed in other settings as well, but the court has not always adhered to it. For 

instance, when the issue is whether an indictment should be quashed for failing to 

provide adequate notice, the court has held that tracking the language of the statute 

may not always be sufficient. In Haecker v. State, the court explained that a 

charging instrument does not provide adequate notice if it tracks the language of 

the statute and the statute itself is not “completely descriptive of the offense.” See 

571 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1978). Similarly, in State v. 

Mays, the court held that an indictment will require greater specificity when a 

statute uses “an undefined term of indeterminate or variable meaning.” See 967 

S.W.2d 404, 407 (Tex. Crim. App. 1998). Relatedly, in the charge context, the 

court has recognized that the jury should be given a definition of terms that have 

acquired a technical or established legal meaning. See Medford v. State, 13 S.W.3d 

769, 771–72 (Tex. Crim. App. 2000); see also Middleton v. State, 125 S.W.3d 450, 

454 (Tex. Crim. App. 2003) (plurality op.).

The principles behind Haecker, Mays, and Medford guide us when 

reviewing the correctness of a jury charge. Just as the defendant must receive 

adequate notice of the charges against him, the jury must understand which law to 

apply, and the wording of a statute may not be enough. As the Court of Criminal 

Appeals recently reiterated, “It is not the function of the charge merely to avoid 

misleading or confusing the jury: it is the function of the charge to lead and to 

prevent confusion.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013) 

(quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)) (emphasis 

added). A charge will not prevent confusion if the statutory text on which it is 

based has a variable meaning in the eyes of the jury.

Standing alone, the statute here is not ambiguous or confusing. “Blood,” as 

that term is used in Section 49.01, can have only one meaning, and that meaning is 
18

“whole blood” as explained above. But during the trial, the jury was not advised of 

this specific definition, and even before closing arguments began, the jury received 

conflicting messages regarding its meaning.

When the State’s expert took the stand, appellant cross-examined him about 

the proof needed to establish that a person is legally intoxicated. The jury heard the 

following testimony:

Q. And in terms of the law and forensics, Texas requires that the 

sample be whole blood, correct?

STATE: Objection, Your Honor, that’s not the law.

COURT: Overruled.

A. Not that I’m aware.

Q. Let me rephrase. Not that the—it doesn’t require that the 

sample itself be whole blood, but the law mandates that the 

levels of alcohol be related to whole blood, correct?

STATE: Objection, Your Honor, calls for a legal 

conclusion.

COURT: Overruled.

A. It dictates units. Off the top of my head, I’m afraid I can’t 

answer regarding the exact statement in the law.

Q. Okay. You’re familiar with the term “BAC”?

A. Yes.

Q. And what does that stand for?

A. BAC can be used—typically it’s used for blood alcohol 

concentration.

Q. Okay. And if I said to you in Texas the law is that you can’t 

have .08, I believe it’s milligrams?

A. It would be grams per one hundred milliliters.

Q. Okay. So, of whole blood, correct?

A. Again, I would have to go back and look. It’s .08 grams per 100 

milliliters is what I remember, at this point.
19

Q. So, you’re not even aware whether the law in Texas requires 

whole blood or plasma blood?

A. Without—we report all values as blood alcohol whole blood 

equivalent. I know we do run serum and plasma and then 

convert them to the whole blood equivalent and that is standard 

practice throughout the United States. I’m not going to go off 

and venture out to say what Texas law specifically delineates in 

their statutes.

The jury never received a definitive answer from the expert, and the State 

obfuscated the issue by objecting to any suggestion that whole blood is the sole 

unit of measurement under the statute. As discussed further below, the State also 

suggested to the jury in its closing argument that whole blood did not need to be 

the unit of measurement, and the trial court overruled appellant’s objection to this 

argument.

This is not a case where the jury was free to assign its own understanding to 

an undefined term from a statute. Cf. Kirsch v. State, 357 S.W.3d 645, 652 (Tex. 

Crim. App. 2012) (holding that the jury should have been free to decide on its own 

whether the evidence showed that the defendant was “operating” a motor vehicle). 

The word “blood” is capable of only one meaning under the Penal Code, and the 

jury should have been instructed of that meaning because it was the law applicable 

to the case. Because the jury heard testimony regarding both whole blood and 

blood plasma, we conclude that it was error to refuse appellant’s requested 

instruction, which removed the possibility of confusion by specifying the type of 

blood evidence that was available for consideration.

II. Harm

Under Almanza, the level of harm necessary for reversal depends on whether 

the defendant timely and specifically objected to the jury charge. See Almanza, 686 

S.W.2d at 171. If the defendant did not object, then reversal is required only if the 
20

trial court’s error was so egregious and created such harm that the defendant did 

not have a fair and impartial trial. Id. Because the defendant in this case properly 

objected, reversal is required if there was just “some harm.” Id.

To determine harm, we weigh the following factors: (1) the jury charge as a 

whole; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) any 

other relevant factors present in the record. See Warner v. State, 245 S.W.3d 458, 

461 (Tex. Crim. App. 2008). Even though the “some harm” standard is a low 

threshold, it nonetheless requires the reviewing court to find actual harm, rather 

than just theoretical harm. Id. Neither party bears the burden on appeal to prove 

harm or harmlessness. Id. at 462.

A. The Jury Charge

The jury received a single instruction, which asked it to determine whether 

appellant had “unlawfully operate[d] a motor vehicle in a public place while 

intoxicated.” As stated above, the definition of “intoxicated” tracked the language 

of Section 49.01, meaning that the jury was allowed to convict appellant on either 

the impairment theory of intoxication or the per se theory of intoxication.

However, the jury was never asked to identify which theory it used in the event of 

a conviction. Thus, we cannot know whether the jury found that appellant had lost 

the normal use of his faculties as the result of his consumption of alcohol, whether 

it found that the alcohol concentration in his blood was above the legal limit under 

the legally flawed portion of the charge, or whether it made findings under both 

theories. Accordingly, we turn to the other factors to determine whether the 

erroneous denial of appellant’s requested instruction might have prejudiced the 

jury’s consideration of the evidence or substantially affected their deliberations.

See Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).
21

B. Closing Arguments

Appellant’s main defensive theory was that he was not the driver. During 

closing arguments, appellant spent most of his time explaining that his fiancée was 

responsible for the accident, and that he had initially taken the blame because he 

wanted to protect her.

In the alternative, appellant also argued that he was not intoxicated, a point 

that would have been relevant only in the event that he was found to be driving. 

Appellant limited his argument to just the impairment theory of intoxication. He 

asked the jury to acquit him because testimony from the first responders supported 

a finding that he was not impaired.

The State argued that appellant was the driver and that he should be found 

guilty under either theory of intoxication. As for the impairment theory, the State 

recited testimony that appellant had consumed several beers on the night of the 

accident. As for the per se theory, the State pointed to the expert’s opinion

regarding the alcohol concentration in appellant’s whole blood and blood plasma.

Appellant asserts in his third issue that the State made an improper closing 

argument. We will consider this issue as part of our harm analysis for charge error.

At the beginning of its closing argument, the State told the jury: “You won’t find 

anywhere in here in the law [the charge] where it needs to be whole blood or 

plasma blood. This is the law y’all follow.” Appellant objected to this argument 

and asserted that the “law requires whole blood,” but the trial court overruled the 

objection. By overruling appellant’s objection, the trial court gave the incorrect 

impression that a conviction could be had by evidence other than whole blood, 

thereby magnifying the possibility for harm. See Good v. State, 723 S.W.2d 734, 

738 (Tex. Crim. App. 1986); Kincaid v. State, 534 S.W.2d 340, 342 (Tex. Crim. 

App. 1976). Later, the State further magnified this erroneous ruling by telling the 
22

jury that it could convict appellant because the BAC of his blood plasma exceeded

0.15.

The State’s argument was a misstatement of law.

4

Proof under the per se 

theory must be based on evidence of a person’s BAC in whole blood. The trial 

court put its imprimatur on the improper argument by overruling an objection that 

“the law requires whole blood.” Had the trial court granted appellant’s requested 

instruction, the State would have known not to make its improper argument, and 

the jury never would have heard those prejudicial remarks.

C. The Evidence

Appellant presented affirmative evidence in support of two defensive 

theories: (1) that he was not the driver, and (2) that he was not intoxicated. The 

jury rejected the evidence as it related to the first defensive theory. The jury found 

that appellant was the driver, and we have no reason to suspect that this finding 

was a byproduct of the trial court’s charge error. If the error had any impact at all 

on the jury’s deliberations, it affected the manner in which the jury assessed the 

evidence of appellant’s intoxication.

Insofar as the impairment theory of intoxication is concerned, the evidence 

was conflicting. The State produced evidence that appellant was impaired: he 

admitted that he consumed several beers, he had alcohol in his system, and there 

 

4

The State contends that its trial argument was “plainly true” and an accurate description 

of the jury charge. Because the charge did not specify that appellant’s alcohol concentration must 

be measured in units of whole blood, the State believes it could not be improper to say that the 

charge was silent. We disagree. By emphasizing that the charge was silent, the State’s manifest 

objective was to convey to the jury that it could base a finding of intoxication on either the 

evidence of whole blood or the evidence of blood plasma. This effect made the argument 

improper, even though it was otherwise grounded by an accurate statement of fact. Cf. Myers v. 

State, 573 S.W.2d 19, 20–21 (Tex. Crim. App. [Panel Op.] 1978) (prosecutor made an improper 

closing argument when a comment about an accurate statement of fact created an implied or 

indirect allusion to the defendant’s failure to testify).
23

was no environmental cause for explaining the accident. Appellant emphasized a 

different view of the evidence: the first responders believed that he was not 

intoxicated, he was not slurring his speech, and he was described as being alert and 

oriented. There was also evidence suggesting that the accident could have resulted 

from a cause other than intoxication, such as an overcorrection. This alternative 

explanation created a fact question for the jury to resolve.

As for the per se theory, the evidence was complex. A hospital technician 

testified that appellant’s blood sample was obtained solely for purposes of 

treatment, not forensics. The technician recognized that there were differences

between whole blood and blood plasma, but he could not explain how the 

concentrations of alcohol varied between the two samples. The only witness who 

could explain that relationship was the State’s expert, William Arnold.

The expert testified that the BAC of a person’s blood “serum” is 16% higher 

than the BAC of his whole blood.5 Applying that ratio to the BAC of appellant’s 

blood plasma, the expert opined that appellant’s whole blood had a BAC of 0.132 

at the time of the blood draw.6

During a voir dire examination, the expert conceded that his 16% ratio was 

not universally accepted throughout the scientific community. He explained that 

 

5

The expert did not provide a ratio as it specifically relates to a person’s blood “plasma,” 

but we recognize that the differences between blood serum and blood plasma are small. Studies 

have shown that alcohol concentrations are often very close between the two samples, if not the 

same, with an average variance of approximately 1%. See Charles L. Winek & Mark Carfagna, 

Comparison of Plasma, Serum, and Whole Blood Ethanol Concentrations, 11 J. Analytical 

Toxicology 267, 267–68 (1987) (cited approvingly in Bigon, 252 S.W.3d at 368 n.6). 

6

It appears that the expert miscalculated here. He subtracted 16% of 0.158 from 0.158 

(which is the same as multiplying 0.158 by 0.84), when he should have divided 0.158 by 1.16. 

See Jessup v. State, No. 13-02-00024-CR, 2004 WL 2612958, at *3 (Tex. App.—Corpus Christi 

Nov. 10, 2004) (mem. op., not designated for publication) (reciting expert testimony that the 

BAC of whole blood is derived by “divid[ing] the serum concentration by 1.16”). The difference 

between the expert’s miscalculation and the correct calculation is de minimis.
24

16% is just an average, and that the range of ratios can be “quite dramatic” 

depending on the health and gender of the person. If a person has a high blood cell 

count—for example, if he has leukemia—then the BAC of the person’s blood 

plasma can be 50% or 60% higher than the BAC of his whole blood.

The expert testified that he had “no idea” what ratio should apply in 

appellant’s case. The expert never considered appellant’s individual characteristics, 

and there was no live testimony establishing whether appellant had a blood cell 

count that was within normal ranges.

7

The expert advised the jury, however, that if 

a higher conversion ratio did apply to appellant because he had a high blood cell 

count, then the BAC of his whole blood would have been 0.079, below the per se 

limit.

In addition to this conversion testimony, the expert provided a retrograde 

extrapolation analysis. The expert explained that when a person consumes alcohol, 

his body will absorb the alcohol into his system until it is eliminated by the liver. 

During the absorption phase, the concentration of alcohol in the body will increase

at a rate that depends on a number of factors, such as how many drinks were 

consumed, how quickly they were consumed, and whether they were consumed on 

 

7 Our dissenting colleague points out that appellant’s hematologic history was checked as 

normal, according to a report attached to his medical records. However, this report was never 

discussed at trial, and there is no indication that the jury ever saw it. At the end of closing 

arguments, the trial court advised the jury that the exhibits, if requested, would be delivered to 

the deliberation room: “I’ll remind you again that if you want to see the evidence, you can ask 

for any or all—any or all of that, and we’ll send it into the jury room with you.” There is no 

record that the jury made a request, and the trial court did not note a request in any of its docket 

sheets.

Even if the medical records had been requested, there is no showing that the jury would 

have known how to interpret them. The meaning of “hematologic” is unlikely to be within the 

common understanding of a lay juror. Furthermore, the records clearly denoted that appellant 

had a “High” count of “WBC”—white blood cells, we presume. A juror could have seen the 

records and concluded that appellant’s blood cell count was higher than average.
25

a full or empty stomach. According to the expert, once all of the alcohol has been 

fully absorbed, the liver will eliminate the alcohol at a constant rate of 0.015 grams 

per 100 milliliters per hour.

The expert made two assumptions: (1) that appellant was eliminating alcohol 

from his system at the time of the blood draw, and (2) that the accident occurred 

one and half hours before the blood draw.8From these assumptions and his stated 

formula, the expert estimated that the BAC of appellant’s whole blood at the time 

of the accident was 0.133.

The expert did not explain in detail how he arrived at that figure, nor did he 

provide a factual basis for assuming that appellant was in the elimination phase. 

The expert testified that a person normally enters the elimination phase within two 

hours of his last drink, but there was no evidence indicating when appellant last 

consumed an alcoholic beverage. Nor was there any evidence of whether appellant 

had been drinking on a full or empty stomach. By assuming that the accident 

happened an hour and a half before the blood draw, the expert failed to realize that, 

without more information, a conclusion could not even be made that appellant had 

entered the elimination phase by the time he arrived at the hospital.

D. Other Relevant Factors

We first note that the expert struggled to perform his calculations, which 

were “on the fly,” as he described them. The trial court had to excuse the expert 

 

8

There is no concrete evidence that the accident actually happened one and a half hours 

before the blood draw. The expert was simply asked to conduct his analysis assuming that time 

lapse. From the live testimony, we know that the eyewitness who saw the accident was traveling 

on the interstate between 11:00 p.m. and midnight. The eyewitness did not testify about the exact 

time that he saw the accident, but a first responder testified that the accident happened “just 

before midnight.” As for the other time point, the evidence is much clearer: a nurse testified that 

she drew appellant’s blood at the hospital at 1:05 a.m.
26

from the courtroom, and the expert returned to give his calculations after another 

witness took the stand.

We also note that, if appellant had been in the absorption phase at any point 

between the time of the accident and the blood draw, then the BAC of his whole 

blood at the time of the accident would have been equal to or less than the BAC of 

his whole blood at the time of the blood draw. This is true regardless of the 

conversion ratio that is used.

E. Analysis

It is clear that the jury determined that appellant was driving, but it is not 

clear under which theory it found that he was intoxicated. There was a conflict in 

the evidence under the impairment theory. There was also a conflict under the per 

se theory; the jury heard testimony that the BAC of appellant’s whole blood could 

have been above or below 0.08, depending on which sorts of assumptions were 

made.

The expert’s testimony demonstrated that many variables must be accounted 

for when trying to establish that a person is intoxicated per se. But under the trial 

court’s erroneous view of the law, none of those variables needed to be considered

in this case. The trial court’s charge error, when combined with the State’s 

improper argument, allowed the jury to convict appellant solely on the basis that 

the BAC of his blood plasma exceeded the per se limit. We conclude that this error 

resulted in some harm because it completely obviated the jury’s need to examine 

appellant’s alternative defense, and there was affirmative evidence in support of 

this defense showing that appellant was not impaired. See Anderson v. State, 774 

S.W.2d 733, 735 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (erroneous 

instruction on the per se theory of intoxication was harmful, even though there was 

sufficient evidence to convict under the impairment theory of intoxication); cf. 
27

Bagheri, 119 S.W.3d at 763–64 (erroneous admission of retrograde extrapolation 

testimony was harmful, even though there was sufficient evidence to convict under 

the impairment theory of intoxication).

CONCLUSION

The evidence is legally insufficient to support a conviction for a Class A 

misdemeanor for driving while intoxicated. We render a judgment of acquittal as to 

this offense, meaning that the State is barred from retrying it. See Ex parte 

Granger, 850 S.W.2d 513, 518 (Tex. Crim. App. 1993).

There is sufficient evidence to support a conviction for a Class B 

misdemeanor, but because we conclude that the trial court committed harmful 

errors with respect to this offense, we reverse the court’s judgment and remand the 

case for a new trial.9

/s/ Tracy Christopher

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby. (Frost, 

C.J., dissenting).

Publish — Tex. R. App. P. 47.2(b).

 

9

This disposition makes it unnecessary to address appellant’s fourth issue, in which he 

argues that the trial court imposed an unconstitutional condition of community supervision.
Appendix B

Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 

(Tex. App.—Houston [14th Dist.] July 7, 2015) (Frost, C.J., 

dissenting).
Reversed and Rendered in Part, Reversed and Remanded in Part, and 

Substitute Majority and Dissenting Opinions filed July 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00706-CR

JOEL NAVARRO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1836127

S U B S T I T U T E D I S S E N T I N G O P I N I O N 1

When police responded to a single-vehicle accident, they found the vehicle’s 

two occupants — appellant and his girlfriend — in the middle of the freeway. Both 

were injured. A motorist reported that he had seen their truck veer into the 

highway’s median. The truck flipped three times, ejecting the girlfriend and 

 

1

The dissenting opinion dated May 28, 2015, is withdrawn, and this opinion is issued in its 

place.
2

leaving her unconscious. At the scene, appellant admitted to a police officer that 

he sat down behind the wheel of the truck and turned the key. Appellant later 

admitted to having consumed five beers before getting behind the wheel. The jury 

convicted appellant of driving while intoxicated (“DWI”). Today, the court 

reverses the conviction.

In an apparent first in the history of Texas jurisprudence, the majority holds 

the trial court erred in defining a term for the jury using the same unambiguous 

language the Texas Legislature used to define the term in the statute establishing 

the charged offense. After finding error, the majority also finds harm, despite 

overwhelming evidence that appellant was driving while intoxicated. Seeing

neither error nor harm, I respectfully dissent.

The Jury Charge

In the jury charge for the guilt/innocence phase, the trial court defined 

“alcohol concentration” as “the number of grams of alcohol per 100 milliliters of 

blood.” Appellant objected and requested the trial court to insert the word “whole” 

so that the definition would read “the number of grams of alcohol per 100 

milliliters of whole blood.” The trial court overruled appellant’s objection and 

refused to submit the definition in the form appellant requested. 

Article 36.14 of the Code of Criminal Procedure requires a trial court to 

provide a written jury charge distinctly setting forth the law applicable to the case.2 

The definition the trial court submitted tracks the plain language the Texas 

Legislature chose to define “alcohol concentration” in the DWI statute.3In this 

 

2

See Tex. Code Crim. Proc. art 36.14 (West, Westlaw through 2013 3d C.S.); Casey v. State, 

215 S.W.3d 870, 886 (Tex. Crim. App. 2007). 

3

See Tex. Penal Code Ann. § 49.01(1) (stating that “‘[a]lcohol concentration’ means the number 

of grams of alcohol per . . . 100 milliliters of blood”) (West, Westlaw through 2013 3d C.S.). 
3

definition, the trial court set forth the law applicable to the case.4 A jury charge 

that tracks the language of a particular statute is a proper charge on the statutory 

issue.

5

No Error

Citing a leading dictionary and a medical textbook, the majority explains 

that the plain meaning of the term “blood” is whole blood and concludes the trial 

court erred in refusing to substitute the term “whole blood” for the term “blood” 

because the charge had a “variable” meaning in the eyes of the jury. The majority 

concludes the charge had a variable meaning because the State’s expert witness did 

not know whether the term “blood” meant “whole blood” in a legal context. The 

expert did not testify that the term meant blood plasma. The expert explained that 

blood plasma and whole blood are different in that the Houston Police Department 

crime lab uses whole blood if it is available and converts blood plasma into whole 

blood if whole blood is not available. In response to a question asking if the expert 

was aware whether Texas law required whole blood or blood plasma, the expert 

stated: 

Without -- we report all values as the blood alcohol whole blood 

equivalent. I know we do run serum and plasma and then convert 

them to the whole blood equivalent and that is standard practice 

through the United States. I’m not going to go off and venture to say 

what Texas [l]aw specifically delineates in their statutes.

 

4

See Casey, 215 S.W.3d at 886–87. 

5

See Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). Citing to two opinions, the 

majority states that the jury should be given the definition of a term that has acquired a technical 

or established legal meaning. See Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App. 

2000); Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003) (plurality op.). But, in

neither did the Court of Criminal Appeals hold the trial court abused its discretion in not 

charging the jury on the definition of a term with a technical or established legal meaning. In 

any event, neither the majority nor the parties cite any cases holding that “blood” is either a 

technical term or a term with an established legal meaning.
4

The majority concludes the State obfuscated the meaning by objecting to any 

suggestion that whole blood is the sole unit of measurement under the statute. But, 

the trial court overruled those objections.

Neither appellant nor the majority cite, and research has not revealed, any 

Texas precedent holding that the trial court’s definition of “alcohol concentration” 

is erroneous or that appellant’s proffered definition is required. Nor has research 

revealed any Texas precedent holding that a trial court errs in submitting a jury 

charge that tracks the applicable Texas statute. This court should not do so. 

Instead, the court should conclude that the trial court did not err in overruling 

appellant’s objection and refusing to submit the definition in the form appellant 

requested.6 Because the trial court did not err, there is no need to conduct a harm 

analysis. 

No Harm

Even presuming for the sake of argument that the trial court erred in 

rejecting appellant’s proposed jury charge, the error is harmless. If a jury charge 

contains error, an appellate court must analyze that error to determine whether it is 

harmful.7 Because appellant timely objected to the charge, this court should

reverse only if appellant suffered “some harm.”

8

 In assessing harm under this 

standard, the court is to weigh (1) the jury charge as a whole; (2) the arguments of 

counsel; (3) the entirety of the evidence; and (4) any other relevant factors present 

in the record.9Even though the “some harm” standard is a low threshold, to find 

 

6

See Casey, 215 S.W.3d at 886; Riddle, 888 S.W.2d at 8. 

7 Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

8

See id. 

9

See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
5

“some harm” the reviewing court must find actual harm, rather than just theoretical 

harm.10 Neither party bears the burden on appeal to prove harm or harmlessness.11 

In assessing the jury charge as a whole, the majority notes that the charge 

required the jury to find appellant guilty if the jury determined appellant was 

intoxicated under either an impairment theory or a per se theory. The majority 

finds “some harm” from the charge because the jury may have disregarded the trial 

court’s unambiguous instructions and found that appellant was intoxicated based 

solely on a finding that appellant’s blood plasma had an alcohol concentration of 

0.08 or more. In analyzing counsel’s closing arguments, the majority notes the 

State may have emphasized the alleged jury-charge error. As the majority

acknowledges, however, in the balance of appellant’s argument he argues he was 

not the driver—an argument the jury rejected—and that the evidence did not show 

he was impaired under the impairment theory of intoxication.

The State presented substantial evidence that appellant was intoxicated 

under both per se and impairment theories. The alcohol concentration of 

appellant’s blood plasma was .158. The expert testified that, on average, 16

percent of whole blood is consumed by cellular material. According to the expert, 

blood plasma does not contain that material, which means the alcohol 

concentration of blood plasma, on average, is 16 percent higher than the alcohol

concentration of whole blood. Using this calculation, the expert converted 

appellant’s plasma-alcohol concentration of .158 to a whole-blood-alcohol 

concentration of .132, well above 0.08.12

 

10 Id.

11 Id. at 462.

12 Significantly, to the extent the jury was relying upon the alcohol-concentration part of the 

definition of “intoxicated,” the jury was asked to determine whether the evidence proved beyond 
6

The majority emphasizes the expert’s testimony that the percentage of a 

whole blood cell consumed by cellular material can vary under certain 

circumstances, including blood cancer. The expert noted that in the case of 

leukemia, 50 percent to 60 percent of an affected individual’s whole blood could 

contain cellular material. The majority notes that if appellant’s blood-cell 

composition mirrored that of a cancer patient, then appellant’s whole-bloodalcohol concentration would have been .079, just under the legal limit of .08. But, 

appellant’s blood composition did not mirror a leukemia patient’s blood 

composition. 

The record evidence contains appellant’s medical records.13 Among them is 

a hematology report.14 This report contains a complete blood count with reference 

ranges. The report shows that appellant’s red blood cell count, hemoglobin level, 

and platelet count were all within the reference range and that only appellant’s 

white blood cell count was outside of the reference range. Appellant’s 

hematologic history is checked as “normal.” Appellant’s medical records contain

no notation of a leukemia diagnosis or any other blood or bone marrow disorder. 

This evidence weighs against the conclusion that appellant’s plasma blood-alcohol 

concentration was 50 percent to 60 percent higher than his whole blood-alcohol 

 

a reasonable doubt that the blood-alcohol concentration was .08 or greater; the jury was not 

asked to make any determination regarding an alcohol concentration of 0.15 or higher.

13 The trial court advised the jury that exhibits would be delivered to the jury room if 

requested. This instruction accords with Texas Code of Criminal Procedure article 36.25, which

provides that exhibits must be furnished to the jury upon the jury’s request. See Tex. Code Crim. 

Proc. Ann. art. 36.25 (West, Westlaw through 2013 3d C.S.). 

14 The majority speculates about whether the medical records went into the jury room and 

whether the jury understood what the hematology report meant. The relevant inquiry is whether 

the report was part of the evidence the jury could consider. It was. In determining harm under 

Almanza, this court must consider the entire record. See Arrington v. State, 451 S.W.3d 834, 

840–44 (Tex. Crim. App. 2015) (reversing court of appeals for finding error harmful without 

considering entire record).
7

concentration. Considering this evidence in light of the expert’s testimony that, on 

average, an individual’s plasma blood-alcohol concentration is 16 percent higher 

than the individual’s whole blood-alcohol concentration, leads to the conclusion 

that appellant’s whole blood-alcohol concentration was over the legal limit of .08. 

Under a per se theory, the evidence supporting appellant’s conviction is strong.

The evidence also shows appellant was intoxicated under the impairment

theory.15 A paramedic who arrived on the accident scene testified that appellant 

told him (1) appellant had consumed four alcoholic beverages and (2) appellant 

was the driver of the truck. Medical records admitted into evidence include notes 

from a social worker. According to the notes, appellant told the social worker he 

had been drinking before the accident; appellant placed his consumption count at 

five beers rather than the four beers he had told the paramedic.16 Evidence shows 

that appellant was driving the truck on the interstate highway in light traffic and 

good conditions when the truck veered suddenly and sharply into a concrete barrier 

with enough force to roll the truck three times. Other evidence shows the 

circumstances of the single-vehicle crash suggested it was an alcohol-related event 

based on appellant’s admission to having consumed four or five beers before the 

crash as well as appellant’s behavior at the scene, which included lying to police 

officers.

17

 There are no other relevant factors.18

Weighing the jury charge as a whole, the arguments of counsel, the evidence 

 

15 See Butler v. State, 981 S.W.2d 849, 857–58 (Tex. App.—Houston [1st Dist.] 1998, 

pet. ref’d) (holding no harm resulted from charge error relating to one theory of guilt because 

evidence supported guilt under alternate theory). 

16 See Atkins v. State, 990 S.W.2d 763, 769 (Tex. App.—Austin 1999, pet. ref’d) (holding 

jury-charge error harmless in light of evidence the defendant was intoxicated, including 

admission of drinking multiple beers). 

17 See id.

18 The expert’s de minimis calculation errors did not significantly affect the evidence of 

appellant’s whole-blood-alcohol concentration.
8

presented in the case, and concluding there are no other relevant factors, this court 

should conclude that any error by the trial court is harmless because of the 

overwhelming evidence of appellant’s guilt.19 

Conclusion

The trial court charged the jury in accordance with Texas law. The trial 

court did not err in refusing appellant’s request to add language to the jury charge. 

Even if the trial court had erred in refusing appellant’s request, the error would be 

harmless because the evidence of appellant’s guilt is overwhelming. Therefore, 

this court should reverse the trial court’s judgment and remand this case to the trial 

court to reform the judgment to reflect a conviction for the Class B misdemeanor 

under Penal Code section 49.04(a), and to conduct a new punishment hearing. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby 

(Christopher, J., majority).

Publish — TEX. R. APP. P. 47.2(b).

 

19 See id.