BACON v. STATE (2026)

OPINION

Appellant Kevin Williams Bacon was charged by information with the Class B misdemeanor offense of driving while intoxicated. See Tex. Penal Code § 49.04(a)–(b). A jury convicted appellant of the offense as charged, and appellant elected for the trial court to assess his punishment. The trial court sentenced appellant to one year in the county jail but suspended his sentence and placed him on community supervision for eighteen months. Appellant presents four issues for appellate review: (1) the trial court erred by admitting evidence that synthetic marijuana was allegedly found in his vehicle; (2) the jury charge contained an erroneous definition of “intoxicated”; (3) the written judgment inaccurately identifies the offense of conviction; and (4) the judgment, if reformed, reflects an illegal sentence. We reverse and remand.

Background

While on night patrol around 3:00 a.m. on April 4, 2023, Bellaire Police Department Officer Travis Younger observed appellant driving over the posted speed limit and making multiple lane changes without signaling. Officer Younger activated his emergency lights for a traffic stop. Upon approaching appellant's vehicle, Officer Younger smelled alcohol and detected signs of intoxication on appellant, such as yellow, glassy, hooded eyes and slurred speech. Officer Younger also noticed empty alcohol containers on the front and rear passenger floorboards. When questioned, appellant acknowledged that he consumed about five mixed drinks earlier in the evening. Officer Younger instructed appellant to exit the vehicle to perform standardized field sobriety tests, which consisted of three assessments: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. On the HGN test, which evaluates eye movements, Officer Younger observed all six possible indicators of intoxication. On the walk-and-turn test, four of eight indicators were noted, and on the one-leg test, two of four indicators were observed, collectively indicating intoxication. Officer Younger testified that in his opinion, appellant was intoxicated on April 4, 2023, due to alcohol consumption.

Officer Younger arrested appellant on suspicion of driving while intoxicated, placed appellant in the back of the patrol vehicle, and conducted an inventory search of appellant's vehicle. During the inventory search, Officer Younger found an open alcoholic beverage and a grinder in a backpack on the rear passenger floorboard, within appellant's reach. Officer Younger acknowledged the substance in the grinder was not tested to determine its THC content but stated he believed it to be synthetic marijuana based on its odor, appearance, and texture, noting that he had encountered synthetic marijuana on “a few” occasions.

After completing the inventory search, Officer Younger transported appellant to the police department and provided him with the DIC-24 form to request breath and blood tests. Appellant consented to providing a blood sample, and a firefighter with the City of Bellaire Fire Department drew appellant's blood. A toxicologist analyzed the blood samples using scientifically accepted protocols and determined the alcohol concentration of appellant's blood to be 0.162 with an uncertainty of measurement of plus or minus 0.017. An anterograde extrapolation was then conducted to estimate how many drinks it would take for a person to reach a certain blood alcohol level. Although there was no testimony regarding appellant's weight, the toxicologist testified that, for a 150-pound male, it would take about three to eight drinks—or between 4.15 and 12 ounces of 80 proof liquor—to reach a blood alcohol concentration of 0.162.

Discussion

I. Admissibility of Evidence

In his first issue, appellant contends the trial court erred by permitting the State to introduce evidence that a substance resembling synthetic marijuana was found during an inventory search of his vehicle. Although the alleged synthetic marijuana was not introduced into evidence, the footage from Officer Younger's body-worn camera documenting the traffic stop, arrest, and subsequent search of appellant's vehicle was admitted. This is the evidence of which appellant complains. During a pretrial hearing, appellant broached the issue of admissibility of the footage with the court, arguing the synthetic marijuana-evidence would unfairly prejudice the jury because the State had not alleged a “marijuana DWI.” The State asserted the information did not specify the intoxicant and contended that the footage was admissible as same-transaction contextual evidence. The trial court overruled appellant's objection, stating “the officer can certainly testify to what he found” and noting the objection concerned the “weight of the evidence.”

A. Standard of Review and Governing Law

Evidence of extraneous offenses is not admissible at the guilt phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). Moreover, while evidence of a crime, wrong, or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character, it may be admissible for other purposes. Tex. R. Evid. 404(b); Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021). These purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, as well as illustrating other aspects of an “indivisible criminal transaction,” also known as same-transaction contextual evidence. Devoe, 354 S.W.3d at 469.

Same-transaction contextual evidence “illuminate[s] the nature of the crime alleged,” see Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993), and must be “necessary to the jury's understanding of the offense” such that the charged offense would make little sense without the same-transaction evidence, see Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). The purpose of admitting same-transaction contextual evidence is to put the charged offense in context. Camacho, 864 S.W.2d at 532. “[E]vents do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

Admissibility of same-transaction contextual evidence is subject to the two-pronged test set forth in Mayes v. State: first, we consider whether the evidence is relevant; and second, we consider whether the evidence should be admitted as an exception under Rule 404(b) or for another purpose not specifically enumerated under Rule 404(b), such as same-transaction contextual evidence. 816 S.W.2d 79, 84–86 (Tex. Crim. App. 1991). Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Tex. R. Evid. 401. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). However, regardless of the Mayes test, same-transaction contextual evidence may be excluded if its probative value is substantially outweighed by a danger of, among other things, unfair prejudice. See Tex. R. Evid. 403; see also Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); Grant v. State, 475 S.W.3d 409, 416 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).

We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see also Pena v. State, 714 S.W.3d 214, 219 (Tex. App.—Houston [14th Dist.] 2024, no pet.). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Grant, 475 S.W.3d at 416 (citing Martin, 173 S.W.3d at 467). We will uphold a trial court's ruling on the admissibility of evidence as long as the ruling was within the zone of reasonable disagreement. Id. A trial court generally does not abuse its discretion in admitting evidence if such evidence was “relevant to a material, non-propensity issue.” Devoe, 354 S.W.3d at 469.

B. Analysis

We begin by addressing the first prong of the Mayes test—whether the footage from Officer Younger's body-worn camera taken during the inventory search of appellant's vehicle was relevant under Rule 401. The short answer is yes.

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code § 49.04(a); State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023). The term “intoxicated” means: (1) not having the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any substance into the body; or (2) having an alcohol concentration of 0.08 or more. See Tex. Penal Code § 49.01(2). The definition of “intoxicated” in the driving-while-intoxicated statute focuses on the state of intoxication, not on the intoxicant. See id. § 49.01(2)(A); Ouellette v. State, 353 S.W.3d 868, 869 (Tex. Crim. App. 2011). Therefore, proving an exact intoxicant is not an element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). Additionally, once a driver is removed from his vehicle, arrested, and secured in a patrol car, law enforcement may, among other things, inventory the contents of the driver's vehicle to ensure the protection of the officers. Harris v. State, 468 S.W.3d 248, 255 (Tex. App.—Texarkana 2015, no pet.).

Here, appellant was charged by information with the offense of driving while intoxicated. The information alleged that “Defendant, heretofore on or about April 4, 2023, did then and there unlawfully, operate a motor vehicle in a public place while intoxicated.” The evidence shows the alcohol concentration of appellant's blood was 0.162, which is over twice the legal limit. The evidence further shows that appellant was alone when he was removed from his vehicle and subsequently arrested on suspicion of driving while intoxicated. After appellant's arrest, Officer Younger conducted an inventory search of appellant's vehicle and found, among other things, an empty bourbon bottle and an empty beer bottle on the front passenger floorboard, an empty beer can on the rear passenger floorboard, and a backpack within appellant's reach that contained a grinder with a substance Officer Younger believed to be synthetic marijuana, though neither the substance nor appellant's blood was tested to confirm the nature of the substance. While the evidence suggesting that appellant was intoxicated by synthetic marijuana specifically was undeniably scant and would have presented a formidable challenge for the State to prove on this record, the specific intoxicant is not an element of the offense. See Gray, 152 S.W.3d at 132.

Having concluded that the footage from Officer Younger's body-worn camera during the inventory search of appellant's vehicle was relevant, we now address the second prong of the Mayes test—whether the evidence was properly admitted as an exception under Rule 404(b) or as same-transaction contextual evidence. See 816 S.W.2d at 84–86. The parties do not contend that the evidence was admissible under any enumerated exception to Rule 404(b); we therefore consider only whether it qualifies as same-transaction contextual evidence. The short answer is it does.

The video from Officer Younger's body-worn camera showed both empty alcohol containers and the substance believed to be synthetic marijuana. This evidence was not offered merely to show appellant's bad character or a propensity to commit the offense. Tex. R. Evid. 404(b); Devoe, 354 S.W.3d at 469. Rather, it served to complete the narrative of events surrounding the charged conduct, giving the jury the full context of appellant's apparent intoxication and behavior at the time of the offense. See Camacho, 864 S.W.2d at 532 (providing that same-transaction contextual evidence “illuminate[s] the nature of the crime alleged”).

As stated, a jury is entitled to know all the facts that are “blended or closely interwoven” within a continuous criminal episode. See Inthalangsy, 634 S.W.3d at 756. Excluding this footage and the accompanying observations would have left the jury with an incomplete and potentially misleading account of the circumstances leading to appellant's arrest and the subsequent inventory search of his vehicle. See Wesbrook, 29 S.W.3d at 115. The search of appellant's vehicle was conducted as a lawful inventory following his arrest for suspicion of driving while intoxicated, and the discovery of the grinder containing the substance believed to be synthetic marijuana arose directly from the arrest. Moreover, a law enforcement officer may testify about what he found during a lawful inventory search, and Officer Younger's testimony here fell squarely within that permissible scope. See generally Jackson v. State, 468 S.W.3d 189, 195 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We therefore conclude that the evidence was not offered to show character or propensity but to illuminate the nature of the charged offense, satisfying the requirements for same-transaction contextual evidence. See Inthalangsy, 634 S.W.3d at 756.

Lastly, we discuss whether the probative value of the footage is substantially outweighed by a danger of unfair prejudice. See Tex. R. Evid. 403; see also Martin, 173 S.W.3d at 467; Grant, 475 S.W.3d at 416. Same-transaction contextual evidence “is almost always admissible,” and “[r]arely will the prejudicial value render inadmissible any evidence that is context of the offense.” Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986); Almaguer v. State, No. 14-06-00996-CR, 2008 WL 2390479, at *3 (Tex. App.—Houston [14th Dist.] June 12, 2008, pet. ref'd) (mem. op., not designated for publication) (“Same-transaction contextual evidence may constitute legally separate offenses; however, the evidence imparts to the trier of fact information essential to understanding the context and circumstances of events.”). Courts should balance the following factors under a Rule 403 analysis: (1) the strength of the evidence in making a fact more or less probable; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the amount of time the proponent needed to develop the evidence; and (4) the strength of the proponent's need for this evidence to prove a fact of consequence. See Perkins v. State, 664 S.W.3d 209, 216 (Tex. Crim. App. 2022).

Here, the reference to the inventory search and the synthetic marijuana allegedly discovered during that search was relevant to provide context for the series of closely interwoven events surrounding appellant's arrest. See Inthalangsy, 634 S.W.3d at 756; Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). The probative value of this evidence was substantial, particularly given that the State did not specify the precise intoxicant alleged to have caused appellant's intoxication. See Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017); see also Gray, 152 S.W.3d at 132. The discovery of a substance believed to be synthetic marijuana offered the jury a more complete understanding of the circumstances surrounding appellant's condition and behavior at the time of arrest, as well as the rationale for the vehicle search that followed. See Wyatt, 23 S.W.3d at 25.

We note that the substance recovered in this case was never tested to determine its chemical composition or THC content. Nevertheless, the relatively brief reference to the alleged synthetic marijuana did not have the potential to impress the jury in any irrational or indelible manner because Officer Younger's testimony was limited to his belief that the substance found in the vehicle was synthetic marijuana. See Perkins, 664 S.W.3d at 216. No laboratory testing or other evidence linked the substance to appellant's intoxication, and the State made no suggestion that appellant had consumed it or that it contributed in any way to the charged offense. Considered in the context of the trial as a whole, the evidence overwhelmingly established appellant was intoxicated under the per se theory.¹ See Navarro v. State, 469 S.W.3d 687, 694 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Thus, the mention of the alleged synthetic marijuana served only a peripheral and explanatory purpose and was not of a nature likely to inflame or prejudice the jury. See Perkins, 664 S.W.3d at 216.

To the extent appellant contends that the State devoted an undue amount of time to developing the evidence concerning the alleged synthetic marijuana, that argument lacks merit. The record reflects that the State did not spend a significant portion of the trial on this evidence, and the limited time devoted to it was reasonably necessary to establish the circumstances surrounding the discovery of the substance. The evidence also served a legitimate purpose in completing the narrative of the offense, explaining why appellant's vehicle was subject to an inventory search, and illustrating Officer Younger's observations during that process. See Wyatt, 23 S.W.3d at 25; see also Almaguer, 2008 WL 2390479, at *3.

At most, the complained-of evidence established only that Officer Younger believed the substance discovered in the grinder was synthetic marijuana. While this testimony was, in a general sense, prejudicial—particularly given that neither the substance nor appellant's blood was tested—the relevant inquiry is whether it was unfairly prejudicial. See Tex. R. Evid. 403. “Virtually all evidence that a party offers will be prejudicial to the opponent's case, or the party would not offer it.” Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). As noted above, however, same-transaction contextual evidence is ordinarily admissible, and it is rare that its prejudicial effect outweighs its probative value to such an extent that exclusion is warranted. Mann, 718 S.W.2d at 744; Almaguer, 2008 WL 2390479, at *3. On balance, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, and its admission fell well within the trial court's discretion under Rule 403. See Perkins, 664 S.W.3d at 216–17.

Accordingly, we overrule appellant's first issue.

II. Jury Charge

As his second issue, appellant asserts the jury charge erroneously included the entire statutory definition of “intoxicated,” even though the State only presented evidence of intoxication by alcohol. The jury charge defined “intoxicated” as follows:

“Intoxicated” means either: (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more.

When, as here, a defendant does not object to an allegedly erroneous jury instruction, we reverse only if egregious harm occurred. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Lopez v. State, 544 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

A. Standard of Review and Applicable Law

When evaluating an alleged jury instruction error, an appellate court engages in a two-step inquiry: first, we determine whether the charge was erroneous, and second, we consider harm. Price, 457 S.W.3d at 440; Lopez, 544 S.W.3d at 502–03. “Trial courts are obliged to instruct juries on ‘the law applicable to the case,’ which includes the statutory definitions that affect the meaning of the elements of the offense.” Ouellette, 353 S.W.3d at 870 (citing Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009)). However, “the charge must also be tailored to the facts presented at trial,” Burnett, 541 S.W.3d at 84, and “when only a portion of the statutory definition is relevant to the elements of the offense, giving the whole statutory definition may be error,” Ouellette, 353 S.W.3d at 870.

If the defendant did not object to the error, we will reverse only if the error was so egregious and created such harm that he was deprived of “a fair and impartial trial.” Lopez, 544 S.W.3d at 503 (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)). “Egregious harm is a difficult standard to prove[,] and such a determination must be done on a case-by-case basis.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). “An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). Actual harm is established when the erroneous jury instruction affected “the very basis of the case,” “deprive[d] the defendant of a valuable right,” or “vitally affect[ed] a defensive theory.” Id.

In reviewing for egregious harm, we consider “the entire jury charge, the state of the evidence, including contested issues and the weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial court as a whole.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Neither the State nor the defendant has the burden to prove harm from charge error; the reviewing court must assess harm from the error's context. See Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000).

B. Analysis

The legislature has adopted a broad definition of “intoxicated” that focuses on whether a person is intoxicated and not the agent that caused it. See Ouellette, 353 S.W.3d at 869–70; see also Gray, 152 S.W.3d at 132. The court of criminal appeals has recognized that this broadening of the statutory framework enables the State to allege only that the defendant was “intoxicated” or to include the statutory definition in full without having to specify the intoxicating substance. See Burnett, 541 S.W.3d at 84. However, it is the trial court's responsibility to deliver a written charge setting forth the “law applicable to the case.” Tex. Code Crim. Pro. art. 36.14. Part of that duty requires that the charge “be tailored to the facts presented at trial.” Burnett, 541 S.W.3d at 84. In the context of a driving while intoxicated case, “the trial court must submit to the jury only portions of the statutory definition of ‘intoxicated’ that are supported by the evidence”; to do otherwise is error. Id.

The parallels between this case and Burnett are unmistakable. As in Burnett, the evidence demonstrates that appellant's intoxication resulted only from alcohol consumption. Officer Younger detected the odor of alcohol, observed slurred speech and glassy, hooded eyes, and noted indicators of impairment during three standardized field sobriety tests. Although an inventory search later revealed a substance that Officer Younger believed to be synthetic marijuana based on its smell, appearance, and odor, no evidence in the record suggests appellant ingested it or that his observed symptoms corresponded to intoxication caused by that substance. See id. Just as the court of criminal appeals in Burnett concluded that the evidence was insufficient for a jury to rationally infer that the white pills at issue were hydrocodone, we likewise conclude that no rational juror could have inferred that the substance in the grinder was synthetic marijuana under these facts. See id. at 84–85. Nor was there any evidence that the substance was “introduced” into appellant's body, as the jury charge requires.

Because there is no evidence in the record that appellant was intoxicated by reason of the introduction of a controlled substance, a drug, or a dangerous drug, it was error for the charge to include those terms in the definition of intoxication. See id. at 85. We next determine if this erroneous definition caused appellant egregious harm as he did not object at trial to the definition of intoxication in the charge. See Lopez, 544 S.W.3d at 503. In doing so, we consider the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information. See Almanza, 686 S.W.2d at 171.

The entire jury charge. First, we consider the jury charge as a whole. See Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Although the abstract portion of the charge properly set forth the statutory definition of “intoxicated” under Penal Code section 49.01(2), the evidence at trial established intoxication by alcohol alone. See Burnett, 541 S.W.3d at 84. By including the full statutory definition, the charge permitted the jury to convict on a theory unsupported by the evidence, thereby creating a risk that the jury's verdict rested on a legally valid but factually unsubstantiated basis. This factor weighs in favor of finding egregious harm. See Bode v. State, No. 03-22-00678-CR, 2023 WL 5622122, at *6 (Tex. App.—Austin Aug. 31, 2023, no pet.) (mem. op., not designated for publication) (finding egregious harm when the application paragraph did not tailor the definition of intoxication to the facts adduced at trial); Burnett v. State, 488 S.W.3d 913, 923 (Tex. App.—Eastland 2016), aff'd, 541 S.W.3d 77 (Tex. Crim. App. 2017).

The state of the evidence. The record reflects that the only testimony concerning the alleged synthetic marijuana came from Officer Younger who arrested appellant, conducted the inventory search, and testified that the substance found in appellant's vehicle smelled like synthetic marijuana. The substance was never tested, and no evidence suggested that appellant had ingested synthetic marijuana or any other controlled substance. Compare Burnett, 541 S.W.3d at 84, with Ouellette, 353 S.W.3d at 870. All other evidence—including appellant's appearance, conduct, and the blood test results—supported intoxication by alcohol alone.

As in Burnett, where the pill-related evidence became an integral part of the trial, the alleged synthetic marijuana here likewise played a material role. Through Officer Younger's testimony, the State attempted to establish indirectly that the substance recovered from the grinder was synthetic marijuana. The State played Officer Younger's body-worn camera footage for the jury, paused the video when he discovered the grinder, and questioned him about the substance's location, smell, and appearance, as well as how he concluded it was synthetic marijuana despite the absence of any testing.

Although the evidence overwhelmingly supports that appellant was intoxicated by alcohol, the State's suggestion that appellant may have also been intoxicated by the alleged synthetic marijuana weighs slightly in favor of a finding of egregious harm because there was no evidentiary basis for the jury to conclude that appellant was intoxicated by any substance other than alcohol, yet the State's implication introduced an alternative, unfounded theory of intoxication that risked confusing the jury and undermining the fairness of the trial. See Hooper v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (“[J]uries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions”; “[a] conclusion reached by speculation ․ is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt”); see also Lopez, 544 S.W.3d at 503.

The argument of counsel. In closing argument, the State told the jury that

[t]here are three legal definitions by which to prove intoxication. You do not all have to agree on which definition of intoxication was met. You just have to know that this defendant, Kevin Bacon, did then and there unlawfully operate a motor vehicle while intoxicated by either loss or normal use of his mental faculties by introduction of alcohol or any other drugs, loss of the normal use of his physical faculties by introduction of alcohol or any other drugs or by his BAC being above a .08.

This argument reinforced the incorrect implication that jurors could rely on any statutory definition or combination of intoxicants to convict, even though only one theory—intoxication by alcohol—was supported by the evidence. By emphasizing alternative legal definitions untethered to the record, the State's argument likely compounded the risk of jury confusion. Contra Bode, 2023 WL 5622122, at *7 (noting that the prosecutor mentioned the expansive definition of intoxication in her closing argument but expressly told the jury that the portion of the definition referencing alcohol does not apply in this case but the portion referencing a controlled substance and a drug does apply). This factor therefore weighs in favor of finding egregious harm.

Other relevant information. We observe that the evidence supporting intoxication by a controlled substance was uninspiring. For example, the substance was not tested to determine its identity or THC content, a blood test was not performed to determine whether appellant had ingested synthetic marijuana, and a drug recognition expert did not testify that appellant was under the influence of any controlled substance or drug. It is also worth mentioning that nothing in the record indicates that the trial court or the parties clarified for the jury that the evidence related solely to intoxication by alcohol. Nor did the jury receive any limiting instruction confining its consideration to that theory. As a result, the jurors were left to deliberate under a charge that misstated the evidentiary scope of the case. This final factor likewise weighs in favor of egregious harm.

In sum, considering the entire record and the four Almanza factors, the inclusion of the full statutory definition of “intoxicated” in the jury charge—when the evidence supported only intoxication by alcohol—created a substantial risk that the jury convicted under a legally valid but factually unsupported theory. 686 S.W.2d at 171. We therefore conclude the charge error was egregiously harmful. Accordingly, we sustain appellant's second issue and do not address his third and fourth issues. See Tex. R. App. P. 47.1.

Conclusion

We conclude that the inclusion of the full statutory definition of “intoxicated” egregiously harmed appellant because the charge permitted conviction on a theory for which the record contained no supporting evidence, effectively allowing the jury to infer intoxication based on an untested substance. See Hooper, 214 S.W.3d at 15–16. As such, we do not address appellant's third and fourth issues directed at the written judgment. See Tex. R. App. P. 47.1. We reverse the trial court's judgment and remand the case for further proceedings. See id. 43.2(d), 43.3.(a).

FOOTNOTES

1.   The statutory definition of “intoxicated” has two alternative meanings: “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol ․ into the body; or (B) having an alcohol concentration of 0.08 or more.” See Tex. Penal Code § 49.01(2). We have described these meanings as providing alternative methods of proving that a person is intoxicated. See Bradford v. State, 230 S.W.3d 719, 721–22 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The two methods are known, respectively, as the impairment theory of intoxication and the per se theory of intoxication. Id.

Maritza Antú, Justice