Sara Webster Popescu v. The State of Texas--Appeal from County Court at Law No 1 of Fort Bend County

IN THE

TENTH COURT OF APPEALS

No. 10-89-114-CR

SARA WEBSTER POPESCU,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Fort Bend County, Texas

Trial Court # 34,193

OPINION ON REMAND

On May 23, 1991, we reversed Appellant's conviction for driving while intoxicated and remanded her cause for a new trial. Relying on State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991), we held that the court should have granted Appellant's motion to quash the indictment because it failed to allege which type of intoxication the State intended to rely on at trial. In a per curiam opinion, the Court of Criminal Appeals granted the State's petition for discretionary review and remanded the cause to us to determine whether the failure to specify which definition of intoxication the State relied upon "prejudiced the substantial rights of [A]ppellant."

Our reliance on Carter was based on the following excerpt:

[I]n the face of a motion to quash, the information was insufficient under Tex. Const. art. I, 10, because it failed to allege which definition(s) of intoxicated and which type(s) of intoxicant the State would seek to prove at trial. Appellant is entitled to know these basic allegations so that he may properly prepare his defense.

See id. at 200.

We note that the Court of Criminal Appeals in Carter omitted an express finding that depriving the defendant of constitutionally guaranteed notice of basic allegations necessary to prepare a defense prejudiced his substantial rights. That finding would seem to be self-evident. Nevertheless, we are apparently required to decide whether violating Appellant's constitutional right to know "these basic allegations so that [she] may properly prepare [her] defense" prejudiced her substantial rights. See id. We hold that it did.

A defendant is entitled to know which definition of intoxication is relied upon so that he may properly prepare a defense. Id. Here, the indictment failed to give Appellant effective notice of the behavior which she allegedly engaged in. See id. (citing Daniels v. State, 754 S.W.2d 214, 217 (Tex. Crim. App. 1988)).

Appellant was deprived of requisite constitutional notice of basic allegations necessary to properly prepare a defense which, in the context of the case, substantialy impacted on her ability to properly prepare a defense. See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986).

The State contends that Appellant has not shown prejudice because she failed to file a brief on remand. A brief is not necessary to point out prejudice in this record. Moreover, the State argues that Appellant was not prejudiced because, even if the court had granted her motion to quash, the State could have pled disjunctively or conjunctively all manner and means by which she could have been guilty of driving while intoxicated, thereby depriving her of any more specific notice than was given under the charging instrument. To accept that argument would, of course, emasculate Carter, which we refuse to do.

Having determined that the defect prejudiced Appellant's substantial right to notice, we reverse the judgment and remand the cause for a new trial.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Reversed and remanded

Opinion on remand delivered and filed November 13, 1991

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