Eric T. Blews v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed December 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00645-CR

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ERIC T. BLEWS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 5411

M E M O R A N D U M O P I N I O N

Eric T. Blews was convicted of public intoxication and fined $125.00, plus court costs. Blews appeals claiming the trial court erred in denying his motion to quash the complaint because the complaint failed to allege the intoxicant.

Blews relies upon Garcia v. State, 747 S.W.2d 379, 381 (Tex. Crim. App. 1988), for its conclusion that in a prosecution for driving while intoxicated, the type of intoxicant used is an element of the offense critically necessary to State=s proof and therefore must be alleged in the charging instrument. Accord State v. Flores, 896 S.W.2d 198 (Tex. Crim. App. 1995); Saathoff v. State, 891 S.W.2d 264 (Tex. Crim. App. 1994); State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991); and Solis v. State, 787 S.W.2d 388 (Tex. Crim. App. 1990). In Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004),[1] the Texas Court of Criminal Appeals disavowed Garcia and concluded Athe substance that causes intoxication is not an element of the offense. It is not the forbidden conduct, the required culpability, any required result, or the negation of any exception to the offense. Instead, it is an evidentiary matter.@ Id.

Based upon Gray, we conclude the charging instrument was not required to allege the type of intoxicant used. Therefore, the trial court did not err in denying the motion to quash. The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 1, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] We note Gray was decided after both briefs were filed in this case. See Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).