State v. Barbernell

The definitions of "intoxicated" in Section 49.01(2) of the Penal Code are evidentiary and therefore do not need to be alleged in a charging instrument. Court of Criminal Appeals, No. PD-0867-07

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OPINION

Stephen Gregory Barbernell was charged with DWI. The court of appeals affirmed the trial judge’s decision to grant Barbernell’s motion to quash due to the State’s failure to allege which definition of “intoxicated” that it intended to prove at trial.*fn1 The court reasoned that intoxication is an act or omission and that the definitions of “intoxicated” provide for different means of commission.*fn2 Because we hold that the definitions of “intoxicated” do not describe an act or omission, we reverse and vacate the judgment of the court of appeals and remand this case to the trial court.

I. Procedural History

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State v. Barbernell

The definitions of "intoxicated" in Section 49.01(2) of the Penal Code are evidentiary and therefore do not need to be alleged in a charging instrument. Court of Criminal Appeals, No. PD-0867-07

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