Ferguson v. State (1999)

In Ferguson v. State, 2 S.W.3d 718 (Tex. App.--Austin 1999, no pet.), a prosecution for driving while intoxicated, the court defined "intoxicated" as "not having the normal use of one's physical or mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a substance or its vapors that contain a volatile chemical, an abusable glue, or an aerosol paint, or a combination of two or more of these substances into the body." See id. at 720. There was, however, no evidence that the defendant was intoxicated as a result of inhaling a volatile chemical, an abusable glue, or an aerosol paint. The prosecutor aggravated the error by telling the jury during his closing argument that "you can be intoxicated because of alcohol; you can be intoxicated because of drugs; be intoxicated because of paint; you can be intoxicated just by combining everything." See id. at 721. The court concluded that the jury instruction, which conformed to the information, erroneously authorized the defendant's conviction on a theory that was not supported by the evidence and was, under the circumstances, calculated to injure the defendant's rights. See id. at 723.