Jason Jeffrey Olson v. The State of Texas--Appeal from County Criminal Court No 5 of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00152-CR

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JASON OLSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court 5

Dallas County, Texas

Trial Court No. MB01-20542-F

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jason Olson appeals from his conviction by a jury for driving while intoxicated. The trial court assessed punishment at 120 days in jail, probated for twenty-four months, and an $800.00 fine. Olson contends the court erroneously included a definition of "normal use" (of his faculties) in the jury charge over his objection and erred by failing to grant his motion to quash and to require the State to elect the acts on which it relied for conviction i.e., loss of his faculties or by having an alcohol concentration of .08 or greater.

The evidence shows that Olson was stopped after being observed running a red light. The arresting officer testified that Olson exhibited numerous signs of intoxication, that his eyes were glassy and bloodshot, that his speech was slurred, and that there was a strong smell of alcohol on his breath. Olson admitted to the officer he had been drinking. Olson failed field sobriety tests and was arrested. An intoxylizer test at the police station showed an alcohol concentration level of at least .199.

On appeal, Olson contends the trial court committed reversible error by instructing the jury with a definition of "normal use." This is in connection with the portion of the application paragraph in which the court instructed the jury it could not convict unless it found beyond a reasonable doubt he "did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, . . . ." The term "normal use" is not defined by statute.

Counsel objected to the use of the definition. The standard of review for errors in the jury charge depends on whether the defendant properly objected. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g); Gornick v. State, 947 S.W.2d 678, 680 (Tex. App. Texarkana 1997, no pet.). If a proper objection was raised, reversal is required if the error is "calculated to injure the rights of defendant." Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is reversible unless it is harmless. Id.

We first look to see if the court erred by giving the instruction. Although a term need not be defined in a charge if not statutorily defined, Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996), other appellate courts have (if not approving such a definition) found this instruction not to constitute reversible error. In Ford v. State, No. 05-02-00065-CR, 2003 Westlaw 176355, at *3 (Tex. App. Dallas Jan. 28, 2003, pet. ref'd), and in Davy v. State, 67 S.W.3d 382, 394 (Tex. App. Waco 2001, no pet.), the same instruction appears as the one given in this case. "'Normal Use' as used herein means the manner in which an average non-intoxicated person would be able to use his or her mental or physical faculties." Olson argues that the definition in those cases is confusing, based on the reasoning set out in Murphy v. State, 44 S.W.3d 656 (Tex. App. Austin 2001, no pet.). However, in Murphy, a much more lengthy instruction was given that the court found to be confusing, misleading, and also a misstatement of the law. Id. at 664.

Even in Davy, the Dallas court recognized that the short definition did not take the defendant's evidence (of problems that might impact his ability to use his "mental or physical faculties" as well as the "average non-intoxicated person") into account and did not rest its eventual affirmance on the propriety of the definition, but instead on its review of the charge as a whole, concluding that the later instruction on intoxication only allowed the jury to convict if it found he did not have the normal use of his mental or physical faculties by reason of the introduction of the intoxicating agent.

We find this reasoning persuasive. We will not carte blanche approve the use of this definition, but in this case, there is no indication of any other reason for Olson's poor performance, and the definition is therefore not misleading. Further, as in Davy, the application paragraph allows the jury to convict (in this context) only if the jury found Olson did not have the normal use of his faculties by reason of the introduction of alcohol (as opposed to some other reason). Accordingly, in this instance, we find no error, and even if the definition were error, in light of the charge as a whole, any error was harmless.

Olson next contends the trial court erred by failing to require the State to elect which act on which it was relying for its prosecution. The indictment alleged both definitions of proving intoxication lack of normal use of faculties and alcoholic concentration of .08 or more. Olson filed a motion to quash in which he also asked the court to require the State to elect which manner and means of committing the offense on which it was relying. Olson then reiterated his request at the close of testimony.

If a statute provides more than one way for a defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some disjunctive combination. Garcia v. State, 747 S.W.2d 379, 380 81 (Tex. Crim. App. 1988). In Solis v. State, 787 S.W.2d 388, 391 (Tex. Crim. App. 1990), the court held:

Because the methods of proving intoxication by alcohol are set out statutorily and do not depend on any conduct committed by a defendant, other than introduction of alcohol into the body--which was already alleged, the State need not specify in the charging instrument whether it will use loss of faculties or alcohol content to prove the offense.

Thus, the definition of intoxication need not be further alleged in the charging instrument. In this case, the State alleged both definitions of intoxication in the disjunctive. Since the State is not required to specify which definition it intends to prove, alleging both possible ways to prove intoxication was proper. State v. Winskey, 790 S.W.2d 641, 642 (Tex. Crim. App. 1990); Morris v. State, 89 S.W.3d 146, 150 (Tex. App. Corpus Christi 2002, no pet.).

When a statute sets out more than one way that an offense can be committed, each of which is based on the same definition, is punishable in the same manner, and is not repugnant to each other, the various methods of commission are not distinct offenses, may be charged in the same indictment, and thus the State need not elect between the various theories alleged, the jury may consider all theories and return a general verdict of guilty. See Jurek v. State, 522 S.W.2d 934, 941 (Tex. Crim. App. 1975); Fitts v. State, 982 S.W.2d 175, 179 (Tex. App. Houston [1st Dist.] 1998, pet. ref'd). The contention of error is overruled.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: April 27, 2004

Date Decided: April 28, 2004

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