¶1dissenting.
¶2I again dissent.
¶3This appeal comes to us on remand from the Court of Criminal Appeals for an analysis of “potential harm from the failure to allege the method of intoxication.” (emphasis added). The majority tiptoes around the open and obvious harm, and with footwork that would dazzle Rocky Balboa, hints that the appellant created the problem, is at fault, and therefore is not harmed.
¶4The obvious harm is outlined in appellant’s points of error eight and nine. Over objection, the court charged the jury that they could find the accused guilty as charged if they found he was intoxicated by reason of “the introduction of alcohol, a drug, or a combination of those substances into the body.” This clearly demonstrates why Texas courts require the State to elect and give the accused notice of which intoxicant they plan to rely on to convict him of DWI charges. It is impossible to determine whether this jury found the appellant guilty of intoxication because of his ingestion of: (1) alcohol; (2) drugs; or, (3) a combination of alcohol and drugs. Since there was no testimony or evidence that appellant was intoxicated on drugs, the harm is obvious.
¶5At the charge conference, after both sides rested, the State asked the court to add to the charge, “drugs, or a combination....” Appellant’s attorney objected and the State argued for the first time that it intended to tell the jury they could find appellant guilty whether it was alcohol, drugs, or a combination of both that made him intoxicated. The prosecutor told *537the court that he intended to argue to the jury that appellant “was intoxicated by a drug.” This is contrary to everything the State told the appellant and the court prior to trial. The State knew of the medication appellant took because the appellant told the arresting officer. The court at first denied the request, and at the insistent urging of the State the court subsequently added “drugs, or a combination ...” to the charge.
¶6Appellant’s attorney argued that the proposed addition to the charge had no bearing on the guilt or innocence of the appellant, because the medication was Dristan and it was taken at 6 a.m. Appellant was arrested at 9:15 a.m. Expert witnesses testified the Dristan would wear off within three hours after ingestion, and there was no opinion testimony that the appellant was intoxicated by reason of ingestion of drugs or a combination of drugs and alcohol. Appellant claimed his sickness and the Dristan may have made the sobriety tests more difficult, but the appellant never contended that if he was intoxicated it was because of drugs, not alcohol. There was no evidence to support the addition of drugs to the charge, and if the motion to quash had been granted, the court could not have charged the jury on drugs or combination.
¶7After the objections to the charge were denied, appellant’s attorney then asked the court for a directed verdict of not guilty as to the addition to the charge; i.e., intoxication by reason of ingestion of drugs or a combination of drugs and alcohol. He argued there was no evidence to support a conviction of intoxication by reason of ingestion of drugs. The motion was denied.
¶8In closing argument, the State made a short opening statement and reserved its argument for summation. The appellant had no way of knowing if the State would argue for the jury to convict appellant because of intoxication by reason of (1) alcohol, (2) drugs, or (8) a combination of drugs and alcohol. The harm is obvious. If the trial court had properly granted the motion to quash, the State would have been forced to make a choice and select the method of intoxication it planned to prove. Appellant could then prepare a proper defense against a single method of intoxication, and he could then argue to the jury based on their single choice for conviction. He would not have to guess. It is impossible to say that there was no harm beyond a reasonable doubt.
¶9Although the remand of this appeal is for a “potential” harm consideration of points of error three through five, the resulting harm is clearly shown in points of error eight and nine. When a timely motion to quash is filed, the State must allege (1) which definition(s) of “intoxicated” and, (2) which type(s) of intoxicant the State will attempt to prove at trial. Failure to do so is a violation of the rights of the accused under Tex.Const. art. 1 § 10. Any language or holdings to the contrary are specifically overruled by the Texas Court of Criminal Appeals. See State v. Carter, 810 S.W.2d 197, 200 (Tex.Crim.App.1991).
¶10I would sustain points of error three through five, eight and nine, and I would reverse the judgment of the trial court and remand for a new trial.