¶1concurring.
¶2While I concur with the disposition of appellant’s first point of error, I write further to question whether the prosecutor’s argument, that the jury could find appellant guilty if he had lost the normal use of either his mental or physical faculties, was improper and whether the trial court erred in overruling appellant’s objection to the argument. Admittedly, the general rule is that argument should not contradict the trial court’s charge. See, e.g., Grant v. State, 738 S.W.2d 309, 311 (Tex.App. — Houston [1st Dist.] 1987, pet. ref'd) (citing Burke v. State, 652 S.W.2d 788, 790 (Tex.Crim.App.1983)). I submit the general rule presumes that the trial court’s charge is correct. Indeed, in Burke, the Court of Criminal Appeals stated, “The prosecutor’s remark that the appellant had to take a physical beating before he could resort to the right of self-defense was clearly a misstatement of the law and contrary to the court’s charge on self-defense.” Burke, 652 S.W.2d at 790 (emphasis added). Thus, an exception to the general rule must exist when the argument is a correct statement of the law and *419the court’s charge is incorrect. I submit that is the situation here.
¶3A bit of history is helpful to understand the error in this case. Disjunctive pleadings in criminal cases were not allowed until 1979. See Hunter v. State, 576 S.W.2d 395, 396-99 (Tex.Crim.App.1979). The common practice was to plead in the conjunctive and charge the jury in the disjunctive. See, e.g., Garrett v. State, 682 S.W.2d 301, 309 (Tex.Crim.App.1984). Even as recently as 1989, the old practice raised its head in a driving while intoxicated case in which the State pleaded mental and physical faculties in the disjunctive. The court of appeals reversed. See State v. Winskey, 770 S.W.2d 942, 943 (Tex.App. — San Antonio 1989) rev’d 790 S.W.2d 641 (Tex.Crim.App.1990) (the Court of Criminal Appeals holding that mental and physical faculties can be pleaded in the disjunctive).
¶4It appears that in this case the old practice of pleading in the conjunctive and charging the jury in the disjunctive was transposed. The State properly pleaded in the disjunctive (“mental or physical faculties”), but the jury charge conjoined mental and physical faculties. This type of error formerly had the effect of raising the State’s burden of proof. See, e.g., Agnew v. State, 635 S.W.2d 167, (Tex.App. — El Paso 1982, no pet.) (holding evidence insufficient where jury charge did not change conjunctive to disjunctive under the reasoning that the State elected to shoulder a more onerous burden than necessary). After Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), we no longer measure the evidence against an incorrect charge. Id. at 240.
¶5Here the statute defines “intoxicated” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol ... into the body.” Tex. Penal Code Ann. § 49.01(2) (Vernon 1994) (emphasis added). Therefore, the information correctly pleaded in the disjunctive and the jury charge incorrectly required the jury to find that appellant had lost the normal use of both his mental and physical faculties. Moreover, the prosecutor’s argument that the jury could find appellant guilty if it found loss of the normal use of either appellant’s mental or physical faculties was an accurate statement of the law. Under these conditions, the error on the part of the trial court was in submitting mental and physical faculties in the conjunctive in the jury charge and in not correcting the error when it became apparent by appellant’s objection to the prosecutor’s argument varying from the jury charge. Naturally, appellant does not complain of these charge errors which ben-efitted him.
¶6I would hold that the trial court’s action in overruling appellant’s objection to the prosecutor’s argument that was an accurate statement of the law, even though it contradicted the court’s charge, was not error. Of course, the better way to handle the situation that arose in this case is for the trial court to correct the jury charge to conform to the law. Accordingly, I concur with the decision to overrule point of error one.