Bacon, Kevin
8/20/26
- “When the jury heard some evidence that raised the possibility of ingestion of a drug in addition to alcohol, must the trial court restrict the definition of ‘intoxicated’ to alcohol under Burnett v. State?”
- “Did the Fourteenth Court of Appeals conflate the some harm standard from Burnett v. State with the egregious harm standard for unpreserved jury charge error when it found the complete definition of ‘intoxicated’ egregiously harmful in this case?”
Bacon was tried for DWI. The evidence showed he committed multiple traffic offenses. He admitted to consuming mixed drinks and had four alcoholic and empty alcoholic beverage containers in the car. His blood showed an ethanol concentration of .162. There was also a grinder in a backpack within his reach, containing contents that smelled like synthetic marijuana. He had slurred speech, which the State’s expert said was consistent with “one or more of the drugs” found in his blood, and he demonstrated all six clues on the HGN, which can show the presence of alcohol or narcotics. A defense expert testified that people who huff paint ingest toluene, which can inflate the results of an ethanol test undetected. Toluene use also results in the loss of normal use of mental and physical faculties, and he could not rule out its presence in Bacon’s blood.
The jury charge included the full definition of “intoxicated,” which included > .08 BAC and loss of faculties due to alcohol, a drug, or a combination. No one objected. Bacon was convicted.
On appeal, the court of appeals, relying on Burnett v. State, 541 S.W.3d 77 (Tex. Crim. App. 2017), held the full definition was error and egregiously harmful.
The State argues that the synthetic marijuana discovery and references to “one or more” drugs and Toluene that may have been in Bacon’s blood justified submission of a combination drug-and-alcohol theory. It contends Burnett unnecessarily discounted evidence of that theory when there was overwhelming evidence of alcohol intoxication. The State argues the test for submission should be the same regardless of the alcohol theory’s strength. As for harm, it criticizes the court of appeals’ reliance on Burnett, which applied the lower “some harm” standard (because the defense objected there) and involved the erroneous admission of the drug evidence. Here, the court of appeals held that admission of the synthetic marijuana evidence did not violate Rule 403, as it was only peripheral and explanatory, and yet also determined that it caused egregious harm in the expanded intoxication definition.