I join in the majority's decision to remand this case to the court of appeals in light of Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004). I hasten to add, however, that the charge in this case does not suffer from the same defects as those in Gray. In that case (1) the application paragraph of the charge permitted conviction for DWI if the jury found that the defendant was intoxicated "by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical," although the defendant was charged only with intoxication by means of alcohol; and (2) the jury charge included a non-statutory jury instruction based upon an appellate presumption concerning the "synergistic effect" of certain drugs taken in combination with alcohol. Gray, 152 S.W.3d at 127.

In this case, however, the complained-of jury instruction is a plain-vanilla statutory instruction on concurrent causation as set out in Section 6.04(a) of the Penal Code. The concerns that I expressed in my dissent to Gray, 152 S.W.3d at 135-40, do not exist here.

Cochran

Filed: September 28, 2005

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