DARRELL DEWAYNE CANNON, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion issued July 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-04-01479-CR
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DARRELL DEWAYNE CANNON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-85775-03
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OPINION ON REMAND
Before Chief Justice Thomas and Justices Francis and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Darrell Dewayne Cannon was charged by information with Driving While Intoxicated (DWI). Appellant pleaded not guilty before a jury. The jury found him guilty and assessed his punishment at ninety days' confinement in the county jail and a $1000 fine. Imposition of the confinement portion of the sentence was suspended and appellant was placed on community supervision for a period of eighteen months. Appellant appealed.
        This Court affirmed the trial court's judgment on original submission. Cannon v. State, No. 05-04-01479 (Tex. App.-Dallas June 29, 2005) (not designated for publication), rev'd, 252 S.W.3d 342 (Tex. Crim. App. 2008) (op. on reh'g). On appellant's petition for discretionary review, the Texas Court of Criminal Appeals reversed this Court's judgment, holding appellant was denied his Sixth Amendment right to the effective assistance of counsel. Cannon v. State, 252 S.W.3d at 352. The court remanded the case to this Court to consider the State's cross-point. Id. The court of criminal appeals specifically stated, “After [this court] considers the State's cross-point, the court of appeals shall remand the case to the trial court for a new trial.”   See Footnote 2  Id.
        After considering the record, we sustain the State's cross-point and we remand the case to the trial court for a new trial.
 
State's Cross-Point: Improper Denial of Jury Instruction)
 
        In its cross-point,   See Footnote 3  the State contends the trial court improperly excluded a jury instruction on the per se definition of intoxication. At trial, the State introduced, and the trial court admitted, the results of appellant's intoxilyzer tests for breath alcohol concentration. The results of the two breath samples were .151 and .140 grams of alcohol per 210 liters of breath. Each result was greater than the statutorily established alcohol concentration of .08. See Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003). Also admitted into evidence was scientific testimony on the accuracy of the test and eyewitness testimony of appellant's symptoms of intoxication near the time of driving. The trial court refused to instruct the jury on the per se definition of intoxication because of the lack of retrograde extrapolation, stating the evidence was insufficient for any jury to conclude beyond a reasonable doubt what appellant's alcohol concentration was at the time he was driving.   See Footnote 4          We review a claim of jury charge error under the two-pronged test set out in consists of a two-pronged test. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). The first prong requires the appellate court to determine if error exists. Id. at 171. If the court determines that error exists, the court then evaluates the harm caused by the error. Id. The degree of harm that must be shown depends on whether an objection was made to the court's charge. If there was no objection in the trial court and error is claimed for the first time on appeal, egregious harm must be shown to obtain relief. See id.; see also Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). But when error is preserved in the trial court by timely objection, the record must show only some harm. Almanza, 686 S.W.2d at 171; Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Harm should be reviewed in light of the entire jury charge, the state of the evidence, argument of counsel, and any other relevant information shown by the record. Almanza, 686 S.W.2d at 171; Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
        A trial court is obligated to instruct the jury on the law applicable to the case. Murphy v. State, 44 S.W.3d 656, 661 (Tex. App.-Austin 2001, no pet.). The jury should be instructed on each element of the charged offense and each statutory definition that affects the meaning of an element. See id. If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Alexander v. State, 906 S.W.2d 107, 111 (Tex. App.-Dallas 1995, no pet.).
        In this case, the trial court admitted the results of the breath tests into evidence. However, it refused to submit a jury instruction on per se intoxication. Intoxication is an element of the offense of DWI. We conclude, therefore, that the per se intoxication definition is a “statutory definition that affects the meaning of an element.” See Murphy, 44 S.W.3d at 661. The seventy- seven-minute lag time between the arrest and breath test goes to the weight, not the admissibility of the evidence. See Stewart v. State, 129 S.W.3d 93, 97 (Tex. Crim. App. 2004) (ninety minute lag time between traffic stop and breath tests pieces of evidentiary puzzle for jury to consider); O'Neal v. State, 999 S.W.2d 826, 832 (Tex. App.-Tyler 1999, no pet.) (stating “[t]he question of the lag time between driving and the breath test is a matter to be weighed by the jury.”)
        Further, the State relied on the per se definition throughout the trial. Consequently, by refusing to instruct the jury on the per se definition of intoxication, one of the State's legal theories of intoxication was undermined. We conclude the State suffered some harm by the trial court's failure to give the instruction. We sustain the State's cross-point.
        We reverse the trial court's judgment and remand the case for new trial.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
041479RF.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 In footnote, the Court stated, “Of course, if, after the court of appeals renders a decision on the State's cross-point, either party files a petition for discretionary review, the court of appeals shall adhere to the requirements of Texas Rule of Appellate Procedure 68.7.” Cannon, 252 S.W.3d at 352 n.11.
Footnote 3 Appellant did not respond to the State's cross-point, either on original submission or on remand.
Footnote 4 The time lag between the driving and the breath test in this case was about seventy-seven minutes.