Adriane Otto was convicted of felony driving while intoxicated and sentenced to four years' imprisonment. Otto appealed her conviction, alleging that the submitted concurrent cause instruction permitted a conviction on a theory not alleged in the indictment, namely, that her intoxication was caused by a combination of drugs and alcohol.

The Court of Appeals disagreed and held that the instruction did not conflict with the remainder of the charge and did not permit a conviction on an alternate theory not included in the indictment. ⁽¹⁾

When the Court of Appeals issued its opinion in this case, it did so without the benefit of this Court's recent opinion in Gray v. State. ⁽²⁾ Therefore, we remand for the Court of Appeals to consider the effect of Gray, if any, on its reasoning and analysis in this case.

DATE DELIVERED: SEPTEMBER 28, 2005

PUBLISH

1. Otto v. State, 141 S.W.3d 238, 241 (Tex. App.-- San Antonio 2004).

2. 152 S.W.3d 125 (Tex. Crim. App. 2005).