1. “Does the filing of a charging instrument containing non-statutory language prohibit the appellate court from considering the hypothetically correct jury charge in a sufficiency review?”
2. “Did the First Court of Appeals sit as a thirteenth juror when holding that a two-hour interval between the time of the stop and the breath test was not sufficient to prove the appellant's breath alcohol concentration was a 0.15 near the time of the offense?”
Ramjattansingh was charged with driving while intoxicated. Normally a Class B misdemeanor, it is a Class A if analysis shows the driver had an alcohol concentration of .15 or more at the time the analysis was performed. Tex. Penal Code § 49.04(b), (d). In this case, however, the State alleged that, “at the time of the analysis and at or near the time of the commission of the offense, an analysis of the [appellant’s] [breath] showed an alcohol concentration level of at least 0.15.” Ramjattansingh’s breath test, taken two hours after a citizen reported he was “all over the road,” showed concentrations of .235 and .220 g/dL. Despite the intoxilyzer expert’s concession that she could not accurately predict Ramjattansingh’s concentration at the time of the offense, the jury convicted him as charged.
The court of appeals reversed. First, it rejected the State’s argument that the hypothetically correct jury charge used to measure sufficiency would track the statute, not the information. Applying the “doctrine of invited error,” it held that the State’s “deliberate decision to increase its burden at trial” prevents it from disowning it on appeal. Applying the elements as charged, it held that an analysis performed two hours after the time of driving was not “near” the time of the offense, as that term is commonly defined.
The State argues that “the inclusion of non-statutory language or surplusage” is not the sort of inducement contemplated by the doctrine of invited error. Unlike another DWI case from the same District Attorney’s office that has the same charging language, see Meza v. State, 497 S.W.3d 574 (Tex. App.—Houston [1st Dist.] 2016, no pet.), nothing in this record supports the contention that the State made a deliberate decision to increase its burden. Alternatively, the “and” in its .15 allegation should be read as an “or.” If the State was required to prove the additional “at or near” allegation, it argues that a rational jury could find that two hours later is near the time of the offense.