Texas Attorney General Opinion: MW-197 Page: 3 of 5
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Honorable Maurice S. Pipkin - Page Three (MW-197)
Id. at 905.
But those cases address only the non-necessity of showing that harm resulted from
danger (Stewart, spra), and the necessity that the state prove both intoxication and
driving (Snider, supra). Neither of them holds that "driving while intoxicated" is noter se
dangerous to persons. If it is, the need for proof thereof is obviated because "driving
while intoxicated" would endanger persons as a matter of law. Proof of the two chief
elements would establish a third: danger.
In Day v. State, the Court of Criminal Appeals decided that "criminal
trespass" was a lesser included offense in a case where the offense charged was
"burglary," although the criminal trespass statute (but not the burglary statute) expressly
required for conviction thereunder proof that the defendant "had notice that entry was
forbidden, or received notice to depart." See Penal Code SS 30.02, 30.05. The state
argued that "notice" was an additional element not necessary to prove in establishing a
burglary, and that criminal trespass could, therefore, never be a "lesser included offense"
of burglary. But the court said:
[I]n a situation such as that presented in the present case where
proof shows that the accused entered a building not then open to
the public, the 'notice' requirement would be satisfied by proof of
entry into the building since 'notice' can be established by a
'fencing or other enclosure obviously designed to exclude
intruders'.... Therefore, the elements of criminal trespass,
including 'notice,' could be established by proof of the same facts
necessary to prove the offense of burglary. The proof of additional
facts would not be necessary, and therequirements of 37.09()...
would be satisfied.
(Emphasis added). Day v. State, supra, at 306.
Perhaps the evil that the "driving while intoxicated" statute intends to correct is so
obvious that courts seldom need to discuss it, but it has been discussed on occasion. In
Johnson v. State, 147 S.W.2d 811 (Tex. Crim. App. 1941), the court, speaking of the "drunk
driving" law, said, "The object and purpose of the law is to prevent men, women, and
children from being wounded and maimed by persons driving automobiles while in a state
of intoxication." 147 S.W.2d 814. In Blackburn v. State, 204 S.W.2d 619 (Tex. Crim. App.
1947), it was said, "The purpose of the law is to protect people against drunk drivers....
Id. at 620.
In oUr opinion, the elements of "public intoxication," including intoxication "to the
degree he may endanger himself or others," could be established in some cases by proof of
the same facts necessary to prove the offense of "driving while intoxicated." Proof of
additional facts would not be necessary.
The soundness of this conclusion is illustrated by the case of Dickey v. State, supra,
decided in 1977. Dickey was a probationer who was discovered drunk and asleep in thep. 638
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Texas. Attorney-General's Office. Texas Attorney General Opinion: MW-197, text, June 23, 1980; (https://texashistory.unt.edu/ark:/67531/metapth272042/m1/3/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.