ACCEPTED

03-16-00582-CR
19867885
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/4/2017 5:49 PM
JEFFREY D. KYLE
CLERK
No. 03-16-00582-CR
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS10/4/2017 5:49:09 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
__________________________________________________________

RALPH FRIESENHAHN, Appellant

v.

THE STATE OF TEXAS, Appellee

__________________________________________________________

On Appeal From the 207th Judicial District Court

Cause No. CR2012-288
Comal County, Texas
__________________________________________________________

BRIEF FOR THE STATE

__________________________________________________________

Jennifer Tharp
Criminal District Attorney

By
Jordan Brown
SBN: 24077690
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: brownj@co.comal.tx.us
Attorney for the State

Oral Argument Is Requested

 Identity of Parties and Counsel

Attorney for the Appellant Ralph Friesenhahn

AT TRIAL & ON APPEAL

Gina Jones
JONES SULLIVAN
200 North Seguin Avenue
New Braunfels, Texas 78130
Telephone: 830.899.3259
Fax: 210.579.644
E-mail: gina.jones@jonessullivan.com

Attorney for the Appellee, The State of Texas

AT TRIAL & ON APPEAL

Jordan Brown
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: 830.221.1300
Facsimile: 830.608.2008
Email: brownj@co.comal.tx.us

ii
 Table of Contents

Index of Authorities ................................................................................................. iv

Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................2

Argument....................................................................................................................4

Standard of review.........................................................................................4

The establishment of a per se definition for intoxication is a

constiutional exercise of the power of the Texas Legislature. ..................4

A. The legislature has the authority to create criminal offenses,

and the creation of a per se definition for intoxication is a valid
exercise of those powers. ......................................................................5

B. Creating the offense of driving while intoxicated is a

constitutional restriction on the act of driving ....................................9

C. A per se restriction on driving with alcohol in the system is not a

substantial impairment on a protected class nor is the law
discriminatory .....................................................................................12

Appellant has failed to meet his burden to establish that the statutory
per se definition of intoxication is unconstitutional. ................................16

Prayer .......................................................................................................................20

Certificate of Service ...............................................................................................21

Certificate of Compliance ........................................................................................21

iii
 Index of Authorities
Cases

Chenoweth v. Hillsborough Cty.,

250 F.3d 1328 (11th Cir. 2001) ...............................................................................14

Colwell v. Suffolk Cty. Police Dep’t,

158 F.3d 635 (2d Cir. 1998).....................................................................................14

Davis v. City of Grapevine,

188 S.W.3d 748 (Tex. App. 2006) ...........................................................................14

Ex parte Mata,
925 S.W.2d 292 (Tex. App. 1996) .............................................................................9

Faulk v. State,
608 S.W.2d 625 (Tex. Crim. App. 1980) ................................................................18

Forte v. State,
707 S.W.2d 89 (Tex. Crim. App. 1986) ....................................................................7

Gonzalez v. State,
8 S.W.3d 640 (Tex. Crim. App. 2000) ................................................................4, 16

Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................................4, 16

Karenev v. State,
281 S.W.3d 428 (Tex. Crim. App. 2009) ................................................................18

Kellogg v. Energy Safety Servs. Inc.,

544 F.3d 1121 (10th Cir. 2008) ...............................................................................14

Lawrence v. State,
240 S.W.3d 912 (Tex. Crim. App. 2007) ..................................................................4

Price v. State,
59 S.W.3d 297 (Tex. App.—Fort Worth 2001, pet. ref’d) .......................................9

iv
Rodriguez v. State,
93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ................................................................4

Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................15

S. Dakota v. Dole,
483 U.S. 203 (1987) ...................................................................................................5

Spann v. City of Dallas,

111 Tex. 350 (1921) ...................................................................................................6

State v. Mechler,
153 S.W.3d 435 (Tex. Crim. App. 2005) ..................................................................9

Turpin v. State,
606 S.W.2d 907 (Tex. Crim. App. 1980) ..............................................................6, 8

Willis v. State,
790 S.W.2d 307 (Tex. Crim. App. 1990) ..................................................................6

Wilson v. Capital Transp. Corp.,

234 F.3d 29 (5th Cir. 2000) .....................................................................................14

Winsley v. Cook Cty.,

563 F.3d 598, 603 (7th Cir. 2009) ...........................................................................14

v
 Other References

D.M. Gorman, J.C. Huber & S.E. Carozza, Evaluation of the Texas 0.08 BAC Law,
41 Alcohol and Alcoholism 2 (2006) https:// academic.oup.com/alcalc/article-
lookup/doi/10.1093/alcalc/agh253 (last visited Sep. 2, 2017) ..............................10

National Highway Traffic Safety Administration, Legislative History of .08 Per Se

Laws, https://one.nhtsa.gov/people/injury/research/pub/alcohol-laws/08History
(last visited Aug. 23, 2017) .....................................................................................4

Yung-Hsiang Ying, Chin-Chih Wu & Koyin Chang, The Effectiveness of Drinking

and Driving Policies for Different Alcohol-Related Fatalities: A Quantile
Regression Analysis, Int. J Environ Res Public Health 4628–4644 (2013),
https://www.ncbi.nlm.nih. gov/pmc/articles/PMC3823314/ (last visited Sep. 2,
2017)......................................................................................................................11

vi
 Statement of Facts

Appellant came to the attention of law enforcement on the day of the offense

because he was involved in a one-vehicle rollover crash (III R.R. at 24-25). During

his investigation of the accident, Trooper Brett Peters came to the conclusion that a

Appellant may have been driving while intoxicated based on the Trooper’s

observations of the scene, Appellant’s poor driving and the signs of intoxication

Appellant exhibited at the scene (id. at 38). Those signs included bloodshot, glassy

eyes, slow and slurred speech, and giving off the odor of alcohol (id. at 34).

In advance of trial Appellant filed a Motion to Quash on August 2, 2016 (I

C.R. at 31-34). The substantive portion of the Motion alleged that Chapters 49.04

and 49.09 of the Texas Penal Code are unconstitutional in that they allow

defendants to be prosecuted for driving with a blood alcohol concentration over

0.08 without regard for their status as alcoholics (id.). The Motion continues in

support that alcoholism is a disease, alcoholics have a higher tolerance and can

consume greater quantities of alcohol before the same effects are observed, and

that a per se standard necessarily violates the Equal Protection Clause of the

United States Constitution by unfairly applying a universal standard to a protected,

exceptional class (id.). Appellant’s Motion to Quash was argued in front of and

denied by the court on the day of trial (id. at 60-64).

1
 Appellant pled not guilty on August 9, 2016 to the indicted charge of

Driving While Intoxicated with Two or More Previous Convictions for the Same

Type of Offense committed on May 4, 2011. Appellant’s blood alcohol

concentration (BAC) results were entered into evidence as State’s Exhibit 4 (III

R.R. at 120). Those results showed the Appellant’s Blood Alcohol Concentration

level to be between .2918 and .2948 between the four samples tested over two days

at the Texas Department of Public Safety Lab (id. at 121). After trial by jury,

Appellant was found guilty and was sentenced by the court to four years in the

Texas Department of Criminal Justice (I C.R. at 52).

Summary of the Argument

Appellant’s only point of error is that the trial court erred by denying the

motion to quash the indictment. In the Appellant’s motion it was argued that the

per se limit of 0.08 blood alcohol concentration is unconstitutional because it

violates the rights of alcoholics, a protected class. This appears to be a challenge to

the facial constitutionality of the statute, as neither the record nor the Appellant’s

Brief contain sufficient evidence regarding the defendant’s status as an alcoholic,

level of tolerance, or the specific facts of this case to be a challenge to the statute

as applied.

2
 The determination of such a per se standard is a valid exercise by the Texas

Legislature of the police powers of the state, firmly within the province of the

Legislature. The criminal activity being regulated here is operating a motor vehicle

while intoxicated. The Legislature created a new offense that can be proven solely

by having a blood alcohol or breath alcohol concentration at or above 0.08,

regardless of whether the other definitions of intoxication have been met. The State

of Texas has the authority to regulate how its citizens operate vehicles on public

roadways. Creating an offense for operating a motor vehicle while having an

alcohol concentration at or above 0.08 applies to all citizens equally in an attempt

to safeguard the public health and safety. Driving is not protected behavior,

therefore the fact that a person may be more likely to drive while intoxicated than

the average person, or that they may be able to more skillfully drive while

intoxicated than the average person does not present an equal protection issue.

Even if alcoholics are a protected class, a per se restriction on blood alcohol

concentration does not rise to the level of a constitutional violation because such a

restriction is not a substantial impairment of a major life activity. Further, there is

no discriminatory intent or effect from the legislation on the right of alcoholics

either to consume alcohol or to operate motor vehicles; it is only the operation of

motor vehicles by any and all persons while legally intoxicated that is restricted.

Appellant’s sole point of error should be rejected.

3
 Standard of Review

A trial court’s ruling on a Motion to Quash the Indictment is reviewed de

novo on appeal. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007).

When the constitutionality of a statue is under consideration, the analysis begins

with the presumption that the legislature has not acted unconstitutionally. Id. The

burden is upon the party challenging the statute to establish its unconstitutionality.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

The establishment of a per se definition for intoxication is a constitutional

exercise of the power of the Texas Legislature.1

Texas has long had a per se definition for intoxication. In 1999 the law was

amended to change the previously defined standard for per se intoxication from

0.10 to 0.08, which is still the threshold for per se intoxication under 49.01(2)(B).

National Highway Traffic Safety Administration, Legislative History of .08 Per Se

Laws, https://one.nhtsa.gov/people/injury/research/pub/alcohol-laws/08History

(last visited Aug. 23, 2017). This followed a national trend pushed during the

Clinton Administration by The Transportation Equity Act for the 21st Century,

tying federal grant funding to the adoption of the 0.08 standard in 1998, similar to

1
At the outset, the Court may resolve this appeal without addressing Appellant’s constitutional
argument because he was convicted under a general verdict, and Appellant has not contested that
the evidence is sufficient to sustain his conviction under the alternative theories. See Hooper v.
State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007); Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.
Crim. App. 2000); see also infra (at 16).

4
the earlier 408 program pushing 0.10, and the 410 program in 1988 pushing a

gradual move from 0.10 to 0.08 beginning in 1988. Id. These were largely

coercive, grant funded programs, because under the United States Constitution the

powers not delegated federally are reserved to the states under the Tenth

Amendment, including what is often called the “police power” of the state. The

states were not obligated to adopt the federal standards, but risked losing access to

the available federal highway grant funding should they decline to adopt the

required standards. Id. This was not dissimilar procedure to what the U.S. Supreme

Court had upheld in the South Dakota v. Dole case, where The Court determined

that placing conditions and terms on the disbursement of money to the states did

not violate the Tenth Amendment limitations on federal influence over state affairs

in the context of coercing states to set minimum drinking age. S. Dakota v. Dole,

483 U.S. 203, 210 (1987) (citing Oklahoma v. Civil Service Comm’n, 330 U.S. 127

(1947)).

A. The legislature has the authority to create criminal offenses, and the
creation of a per se definition for intoxication is a valid exercise of those
powers.

The police power of the state is the power reserved by each state under the

U.S. Constitution and the Tenth Amendment to establish and enforce all laws

necessary with the goals of protecting the welfare, health, morals, and safety of the

5
public. The source of the power is the grant of authority from the people governed

to the government, for the existence of order and security over the individual

interests of many. Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W. 513, 515

(1921). The authority is not absolute, but is limited by the fundamental limitations

of the Constitutions of the state and nation. Id. The basis for the power is the

significant interest of the state in maintaining public safety and order for the

citizens of the state. Faust v. State, 491 S.W.3d 733, 748 (Tex. Crim. App. 2015)

reh’g denied (June 15, 2016).

The Texas Constitution established the initial framework for the Texas

Legislature, and how the process of making laws would proceed. The Courts have

recognized that the Legislature possesses the sound discretion to debate and pass

legislation, including specifically the power to create and define criminal offenses.

Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990). That discretion

extends to modify existing offenses, create new offenses, and also includes the

authority to create and define defenses to those criminal offenses. Id. Further, and

dealing specifically in the realm of intoxication-based offenses, the Legislature

also has the power to adopt presumptions of sobriety alongside the power it has to

define intoxication. Turpin v. State, 606 S.W.2d 907, 912 (Tex. Crim. App. 1980).

That power to pass legislation setting presumptions is not a power shared by the

courts, but is the province of the legislature. Id.

6
 The Texas Legislature has chosen to create a per se definition for

intoxication, and has also chosen not to adopt a presumption of sobriety, nor has it

chosen to adopt alcoholism as a defense to the offense of driving while intoxicated.

Id. The Legislation on Driving While Intoxicated with priors is codified in various

subsections of section 49 of the Texas Penal Code: the underlying offense in §

49.04, the necessary definitions in § 49.01, and the basis for enhancement in §

49.09. Tex. Pen. Code § 49.01, 49.04, 49.09. The positions advanced by Appellant

prior to his trial for Driving While Intoxicated with two or more priors are

essentially arguments on why the law should be changed; the consideration of the

arguments is a legislative one, and does not raise a constitutional issue with the

application of the law as it is. As the Court of Criminal Appeals stated in Turpin,

“Whether a particular blood alcohol level should carry the weight of a presumption

is a matter for the legislature.” Id.

The Texas Court of Criminal Appeals has regularly held that the Texas

legislature has the power to define criminal conduct within the constitutional limits

placed upon it, including specifically in regards to regulating Driving While

Intoxicated offenses. Forte v. State, 707 S.W.2d 89, 96 (Tex. Crim. App. 1986).

That same court specifically held that the state has the power to define intoxication

as having an alcohol concentration of 0.10 percent or more, as was the newly

7
amended law of the state in 1983.2 Id. at 93-96. While the law has been

subsequently amended to the new standard alcohol concentration of 0.08, that

change in no way curtailed the Legislature’s power to create and define offenses.

The Texas Legislature has chosen to create a valid restriction on the

privilege of driving by providing a per se definition for intoxication. Just as a state

has the ability to prohibit the possession of a substance and to restrict the

maximum speed on a highway or in a school zone, it has the power to restrict the

privilege of driving when a driver has alcohol in their system. The per se statute

creates a definition of intoxication which recognized another way of committing

the offense of driving while intoxicated, in addition to the prior basis for the

offense requiring proof of the loss of normal mental or physical faculties. In this

way, the 0.08 blood alcohol concentration becomes an element of the offense of

driving while intoxicated based on BAC. See id. at 95.

Proof of “impairment” through the loss of ordinary mental and physical

faculties – as was traditionally required – is not relevant to the newer, separately

defined per se intoxication offense. It is possible under the law to be found guilty

of the offense of driving while intoxicated for meeting the threshold for any one of

the three defined manners and means. Alternatively, it is also possible for a

defendant to be found guilty for a combination of two or even all three of the

2
In addition to the change from .010 to 0.08, the Legislature also removed “percent” from the
definition. Prior to that removal the word had caused some confusion.

8
manners and means; unanimity of the jury decision on manner and means is not

required. See Price v. State, 59 S.W.3d 297 (Tex. App.—Fort Worth 2001, pet.

ref’d). Further, evidence can be considered for determining any of the manners and

means beyond a reasonable doubt, sometimes in concert – a blood alcohol

concentration may, for example, be considered as evidence by a jury that the

defendant has in fact lost his mental and/or physical faculties. See State v. Mechler,

153 S.W.3d 435 (Tex. Crim. App. 2005) (BAC results make it more probable that

the defendant was intoxicated under both per se and impairment definitions).

Because the state has the power to define intoxication in a per se manner,

this exercise of police power and legislative authority is not in violation of the

constitution and is a valid exercise of governmental power in furtherance of the

goal of protecting the health, welfare, and safety of the public.

B. Creating the offense of driving while intoxicated is a constitutional

restriction on the act of driving.

Driving is a privilege and not a right, subject to licenses, restrictions, and

remedial activity, including revocation. Ex parte Mata, 925 S.W.2d 292, 295 (Tex.

App. 1996) (citing Texas Dep’t of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728

(Tex. 1985)). While the state must grant a license to persons who meet the

requirements and qualifications and may not deny a license capriciously, the state

still maintains regulatory power. Id. Specifically, the state can set qualifications

9
that must be met, fees that must be paid, and may determine circumstances under

which licenses should be revoked, either administratively or as a criminal sanction.

Id. The creation of criminal offenses including speeding, requiring insurance and

registration, and intoxicated driving are additional restrictions on the act of driving.

The fact that a person belongs to a protected class does not exempt them

from these routine restrictions placed on the act of driving, nor does it shield them

from the criminal enforcement of the laws of the state. An individual with a valid

prescription cannot be prosecuted for the possession and use of that drug as

prescribed in a private place. In the same way, an alcoholic cannot be prosecuted

or punished for consuming alcohol in a private place. However, neither of those

individuals is protected from prosecution when they make the choice to exercise

their driving privileges in violation of the laws of the state of Texas.

There is an abundance of research on the issue of when an individual has

lost the ability to drive safely. A 2006 study compiled and evaluated much of the

research conducted prior to that time and concluded that while some evidence

indicated that 0.08 could be effective, a statistical analysis of Texas in particular

showed that it had not been. D.M. Gorman, J.C. Huber & S.E. Carozza, Evaluation

of the Texas 0.08 BAC Law, 41 Alcohol and Alcoholism 2 (2006) https://

academic.oup.com/alcalc/article-lookup/doi/10.1093/alcalc/agh253 (last visited

Sep. 2, 2017). The study noted that its data was flawed from the collection process,

10
as huge percentages of the cases involving both fatal accident data from the

National Highway Traffic Safety Administration and DPS data on alcohol-related

crashes, fatal and non-fatal, did not have any or accurate BAC information, leading

to imputed numbers for the calculation. Id. Ultimately, the study concluded that it

was not simply the question of whether 0.08 is a good standard, or the right

standard, but that conditions such as publicity and consistent enforcement and

collateral consequences such as administrative license revocations are important to

the end goal: preventing alcohol-involved crashes and saving lives. Id. A more

recent study concluded that in areas with a high rate of alcohol-related fatalities

(which would include Texas) a BAC limit of 0.08 along with ALR correlated with

a reduction in fatalities. Yung-Hsiang Ying, Chin-Chih Wu & Koyin Chang, The

Effectiveness of Drinking and Driving Policies for Different Alcohol-Related

Fatalities: A Quantile Regression Analysis, Int. J Environ Res Public Health 4628–

4644 (2013), https://www.ncbi.nlm.nih. gov/pmc/articles/PMC3823314/ (last

visited Sep. 2, 2017).

There are studies showing different results in all directions; some research

data either suggests that a .08 per se standard lowers fatalities due to alcohol-

related crashes, showed no meaningful and statistically significant effect, or

produced more equivocal findings somewhere between no effect and a significant

effect. Id. Even with some research that suggests that 0.08 does not make a

11
substantial difference from the previous standard of 0.10 in terms of overall

safety—the purported justification for having a per se regulation—the Legislature

does not lose its power to set the standard. While the instant brief has not provided

a complete survey of all of the favorable data, because there is some scientific data

which suggests that a 0.08 standard leads to a reduction in accidents or fatalities

where alcohol is involved, it is the elected Legislature’s prerogative to determine

the appropriate standard. It is notable that a significant number of organizations

supported the 0.08 BAC standard that the state of Texas moved to in 1999.

Regardless, the state of Texas has exercised its police powers to impose, in

addition to the earlier manner and means requiring loss of mental or physical

faculties, a per se restriction on driving with alcohol in the system at or above a

concentration of 0.08. This is a valid exercise of the state’s police power—of the

Legislature’s power to create and define offenses—and has been maintained by the

Legislature and upheld by the courts since its enactment.

C. A per se restriction on driving with alcohol in the system is not a

substantial impairment on a protected class nor is the law discriminatory.

This brief is not aimed at resolving the question of whether alcoholics are a

protected class under the laws of the United States and/or the State of Texas.

Appellant has cited several cases to argue that alcoholics are, or at least that they

can be depending on case-by-case considerations. Brief for Appellant at 3-4. This

12
analysis is not needed, because even if it is presumed that the Appellant is in fact

an alcoholic—despite the fact that there is insufficient evidence for the Court to

make that determination—and further accepting the argument that alcoholics are a

protected class, the per se ceiling on legally permissible blood alcohol

concentration is neither discriminatory nor a substantial impairment on a major life

activity, things necessary to establish a constitutional violation.

In order for alcoholism to be a protected disability, it must first involve a

mental or physical impairment. There is insufficient information in the record to

merit the conclusion that Appellant is an alcoholic, and the constitutional argument

should fail. If the Court accepts that he is an individual with a disability and moves

on to further analysis, it must examine both whether driving is a major life activity

and whether the per se law causes a substantial impairment of that major life

activity.

The Appellant has failed to meet his burden in establishing that driving is a

major life activity entitled to additional protection. Although citing generally some

categorical, fundamental major life activities, no case law is cited in support of the

contention that an individual’s unregulated right to drive is a major life activity.

Generally speaking, a major life activity includes functions such as “caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” Davis v. City of Grapevine, 188 S.W.3d 748, 759 (Tex.

13
App. 2006) (quoting 29 C.F.R § 1630.2(I)). Driving is certainly an important

activity in the lives of many people. However, numerous courts have determined

that driving is not a major life activity. See Wilson v. Capital Transp. Corp., 234

F.3d 29 (5th Cir. 2000); Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 1126

(10th Cir. 2008); Chenoweth v. Hillsborough Cty., 250 F.3d 1328, 1329–30 (11th

Cir. 2001); Colwell v. Suffolk Cty. Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998);

Winsley v. Cook Cty., 563 F.3d 598, 603 (7th Cir. 2009). The Court in Chenoweth

was particularly clear:

It would at the least be an oddity that a major life activity should

require a license from the state, revocable for a variety of reasons
including failure to insure. We are an automobile society and an
automobile economy, so that it is not entirely farfetched to promote
driving to a major life activity; but millions of Americans do not
drive, millions are passengers to work, and deprivation of being self-
driven to work cannot be sensibly compared to inability to see or to
learn.

250 F.3d at 1329-30.

Even if driving did qualify as a major life activity, the Appellant has failed to

provide any basis demonstrating the existence of a per se BAC law is a substantial

impairment or discriminatory in its intent, application and impact. At its most

onerous, the law simply provides the possibility of legal consequence should a

person choose to drive after drinking beyond a certain amount. The statute is not a

substantial impairment on the life of the alcoholic, who can choose to drink when

driving is not necessary, or can find an alternative means to travel if they have

14
decided to drink beyond the threshold. The restriction on driving imposed is a

limited one, and imposes the exact same non-substantial burden on all citizens of

the state.

The constitutional rights of alcoholics are not any more impaired by DWI

laws than by a speed limit – certain limitations on driving are reasonable and

legally permissible, and the same burden is shared by all. The Appellant cannot

establish discriminatory purpose with the bald assertion that alcoholics are targeted

– it applies to all persons within the state equally, there is no evidence of a

disproportionate adverse impact, and there is no evidence of discriminatory

purpose. As cited in Appellant’s Brief:

We have attempted to reconcile the principle with the reality that by

stating that, if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the legislative classification so long as it
bears a rational relation to some legitimate end.

Romer v. Evans, 517 U.S. 620, 634 (1996). All factors of this analysis weigh

against the Appellant, who can not establish that he or his class were treated

differently, that any disparate treatment was without a reasonable basis, or even

that Appellant belonged to the class of alcoholics that he claims is discriminated

against.

15
 Appellant has failed to meet his burden to establish that the statutory per se
definition of intoxication is unconstitutional.

Appellant fails to address the fact that the jury had multiple alternative

manners and means from which they could have found the Appellant guilty, and

the jury returned a general verdict of “guilty.” There is no record of what the basis

for their decision was in this case. Under the general verdict theory, so long as

there is sufficient evidence on any alternative theory authorized by the charge, the

convictions should be upheld. See Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim.

App. 2007); Gonzalez v. State, 8 S.W.3d 640, 641 (Tex. Crim. App. 2000). Under

that principle, even if the Court otherwise accepted Appellant’s argument, the

Appellant would still be guilty under the loss of mental or physical faculties of the

driving while intoxicated law, as the jury charge authorized that manner and means

(III R.R. at 148). If there was to be a test case for pushing the question of whether a

per se standard is unconstitutional, this would not be the exemplar for that

argument. The central theme of the Appellant’s argument is that the state was not

required to prove at trial the loss of mental and physical faculties of the Appellant,

or “actual impairment” as the Appellant refers to the formerly exclusive manner

and means of proving driving while intoxicated cases prior to the passing of the

per se law. The response is twofold: first, there is no indication that the jury did not

in fact do just that; secondly: the per se law does not require that. The law requires

proof of intoxication. The Legislature has defined 0.08 as intoxication. Therefore if

16
the only evidence of intoxication is a BAC at or above 0.08, the jury has sufficient

evidence to find intoxication if they believe that evidence beyond a reasonable

doubt.

This brief has not addressed the status of alcoholics as a protected class

because the contention that this law is unfairly and discriminatorily targeting

alcoholics fails, even if alcoholics are accepted as a protected class. As part of the

valid exercise of the powers of the Legislature, it may restrict the privilege of

driving to protect public health, just as other restrictions exist to regulate when and

how a person may learn to drive, may only drive at certain ages, must drive at

certain speed in certain areas, and may only drive vehicles of a certain size. The

determination that 0.08 is an appropriate threshold for intoxication is based on

research; the fact that a person, be he an alcoholic or not, may drive better at a

higher alcohol concentration than another person does not invalidate a law passed

to protect the greatest number of people. In fact, the bulk of the Appellant’s

argument is essentially that 0.08 is arbitrary and that the law does not take into

account alcohol tolerance. These are both issues that are the purview of the

Legislature to consider in making and reforming laws; these are not related to the

constitutional question being placed before this Court.

Appellant’s argument essentially is that because an alcoholic is better

equipped to drive with a larger amount of alcohol, he should be entitled to more

17
leeway than a regular person. The decision of where to set a per se threshold

applies to the entire populace, and is not variable based on the individual traits of

the Appellant. The definition applies equally to all; to a small woman and to a

large man, to an individual having their first drinks on their 21st birthday and to

the individual with cirrhosis of the liver from a lifetime of heavy drinking.

The Appellant bears the burden to establish that the law he is challenging is

unconstitutional. Further, based on the nature of the challenge, that burden begins

with the presumption that the Texas Legislature acted legally in enacting the law.

See, e.g., Karenev v. State, 281 S.W.3d 428, 429 (Tex. Crim. App. 2009) (“Statutes

are presumed to be constitutional until it is determined otherwise”); Faulk v. State,

608 S.W.2d 625, 630 (Tex. Crim. App. 1980). Appellant has cited no case or law

even suggesting that the per se standard is unconstitutional on its face, and has

cited neither legal nor factual basis of any situation, similar or not, where the law

was found to be unconstitutional as applied to any individual, let alone one in

Appellant’s position.

There is a complete absence of evidence indicating any discriminatory

purpose in the law, there is also a complete lack of any evidence of actual

discriminatory effect. The mere allegation that the Appellant is an alcoholic, even

if true and supported, is insufficient to make the statute unconstitutional. The mere

assertion that alcoholics can drive better and safer despite being above the legal

18
BAC threshold is not sufficient proof to meet the burden, and even if true would

fail to establish any constitutional violation. And there is no support, even if taken

as true that alcoholics are a protected class, that driving is a protected activity, or

that these limited restrictions on driving even approach a constitutional violation.

Appellant bears a heavy weight of both meeting his burden and overcoming the

presumption of constitutionality, and has failed to do either. Alcoholics are not

unfairly targeted by the law in question, nor are they unfairly affected by the law in

question; all individuals are targeted equally by the same standard to achieve

overall safety for the community, a core principal of the police power that provides

the very authority to consider and pass legislation. Appellant’s argument that

alcoholics are unfairly discriminated against is conclusory and Appellant has failed

to meet his burden or overcome the presumption of legal action by the Legislature.

19
 Prayer

Wherefore, premises considered, Appellee respectfully prays that this

Honorable Court of Appeals affirm in all matters the judgment of the trial court in

this case. The State also prays for all other relief to which it may be entitled.

Respectfully submitted,

JENNIFER THARP
Criminal District Attorney

By

/s/ Jordan Brown

Jordan Brown
SBN: 24077690
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
E-mail: brownj@co.comal.tx.us
Attorney for the State

20
 Certificate of Service

I, Jordan Brown, Assistant District Attorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this Brief for the State has

been delivered to Appellant Ralph Friesenhahn’s attorney of record in this matter:

Gina Jones
gina.jones@jonessullivan.com
200 North Seguin Avenue
New Braunfels, Texas 78130
Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email

address, this the 4th day of October, 2017.

/s/ Jordan Brown

Jordan Brown

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate Procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 4,737
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

/s/ Jordan Brown

Jordan Brown

21