TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00582-CR

Ralph Alfred Friesenhahn, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

MEMORANDUM OPINION

A jury convicted appellant Ralph Alfred Friesenhahn of felony driving while

intoxicated, see Tex. Penal Code §§ 49.04(a), 49.09(b)(2), and assessed his punishment at

confinement for four years in the Texas Department of Criminal Justice and a $1,000 fine, see id.

§ 12.34. In a single point of error on appeal, appellant challenges the trial court’s denial of his

pretrial motion to quash the indictment. Finding no error in the ruling, we affirm the trial court’s

judgment of conviction.

BACKGROUND

Appellant was charged by indictment with felony DWI. See id. §§ 49.04(a),

49.09(b)(2). Section 49.04 of the Penal Code, the DWI statute, provides that “[a] person commits

an offense if the person is intoxicated while operating a motor vehicle in a public place.” See id.

§ 49.04(a); see also id. § 49.04(a) (elevating offense to third degree felony if defendant has been
convicted twice before of DWI offense). For purposes of the intoxication offenses set forth in

Chapter 49 of the Penal Code, which includes section 49.04, section 49.01 of the Penal Code defines

“intoxicated” as

(A) not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any other substance into
the body; or

(B) having an alcohol concentration of 0.08 or more.

Id. § 49.01(2). Prior to trial, appellant filed a motion to quash the indictment asserting that “the

indictment [was] based on a statute that violates the Equal Protection Clause of the U.S. Constitution

and the Texas Constitution.” Specifically, appellant claimed that the statutory definition of

intoxicated as having an alcohol concentration of 0.08 or more, set forth in section 49.01(2)(B)

and incorporated into section 49.04, violates equal protection because it unfairly discriminates

against alcoholics.

The trial court considered appellant’s motion to quash at trial before jury selection.

Appellant offered no evidence in support of his motion but merely offered argument to the court.

Appellant asserted that “the statute of .08 being the legal threshold for intoxication” discriminates

against alcoholics because “many of those folks who suffer from the disease of alcoholism are able

to maintain normal functioning at .08 versus a person who does not [suffer from the disease of

alcoholism].” To support this contention, appellant mentioned “studies” that have been

done—though none were provided to the trial court—and referred to federal agencies that classify

alcoholism as a disease—though no evidence of this was presented to the trial court. Appellant

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argued that the 0.08 alcohol concentration definition “force[s] a strict liability of criminal

responsibility on something that an alcoholic would possibly have no control over,” which, he

maintained, violates an alcoholic’s equal protection rights. He noted that historically “per se driving

laws” regarding “blood alcohol contents” have dropped the level of the statutory limit since the

inception of such statutes, and opined that “there has been very little impact” of the limit being

lowered. He urged that, given the “more common and modern approach that alcoholism is a disease

and an affliction that is not necessarily curable without proper treatment . . . the time is right for the

judicial branch of the government to refocus on these laws to find out if our citizens that suffer from

this disease are being unfairly treated versus other members of the society.” The trial court denied

the motion to quash.

DISCUSSION

In his sole point of error, appellant maintains that alcoholism is a disability under the

Americans with Disabilities Act, asserts that the 0.08 per se definition of intoxication “does little to

improve highway safety,” and claims that the 0.08 presumption is “arbitrary and overly broad.”1 He

asks this Court to “find[] that Texas Penal Code § 49.04 and 49.01(2)(B) violate[] the right to equal

protection guaranteed by the United States Constitution and Texas Constitution.”2 Based on

1
We note that the studies and case law presented in appellant’s brief to support his
constitutional challenge are presented for the first time in this appeal and were not presented to the
trial court during the hearing on the motion to quash.
2
Appellant challenges the statutes under both the United States and Texas Constitutions.
However, the Court of Criminal Appeals has held that the Texas equal rights provision and the
federal equal protection provision are coterminous. See Cannady v. State, 11 S.W.3d 205, 215 (Tex.
Crim. App. 2000). Therefore, the analysis under the Texas Constitution is the same as the analysis
under the United States Constitution, see Modarresi v. State, 488 S.W.3d 455, 464 n.4 (Tex.

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appellant’s briefing and prayer, we construe his argument as a challenge to the trial court’s denial

of his motion to quash the indictment.

When a trial court’s ruling on a defendant’s motion to quash an indictment concerns

a matter unrelated to the credibility or demeanor of witnesses, such as the constitutionality of a

statute, we review the ruling de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.

2007); see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (“When the resolution of a

question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the

trial court is not in a better position to make the determination, so appellate courts should conduct

a de novo review of the issue. . . . The trial court’s decision in this case was based only on the

indictment, the motion to quash, and the argument of counsel, so the trial court was in no better

position than an appellate court to decide this issue.”).

There are two types of challenges to the constitutionality of a statute: the statute is

unconstitutional on its face, or the statute is unconstitutional as applied to the defendant. Fluellen

v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.); see Karenev v. State,

281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J., concurring) (“[W]hat is the difference

between a facial challenge and an ‘as applied’ challenge to the constitutionality of a penal statute?

Evidence. A facial challenge is based solely upon the face of the penal statute and the charging

instrument, while an applied challenge depends upon the evidence adduced at a trial or hearing.”).

App.—Houston [14th Dist.] 2016, no pet.), and we do not address appellant’s Texas Constitutional
claim separately.

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 A facial challenge is an attack on the statute itself as opposed to a particular

application. Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017); Peraza v. State,

467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Except when First Amendment freedoms are

involved, a facial challenge to a statute is a claim that a statute, by its terms, operates

unconstitutionally in all possible circumstances.3 Salinas, 523 S.W.3d at 106; State v. Johnson,

475 S.W.3d 860, 864 (Tex. Crim. App. 2015); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim.

App. 2013). To prevail on a facial challenge to the constitutionality of a statute, a party must

demonstrate the statute always operates unconstitutionally in all possible circumstances; in other

words, no set of circumstances exists under which the statute would be constitutionally

valid. Peraza, 467 S.W.3d at 514; Rosseau, 396 S.W.3d at 557; State ex rel. Lykos v. Fine,

330 S.W.3d 904, 908 (Tex. Crim. App. 2011) (orig. proceeding); Gillenwaters v. State,

205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). In a facial challenge to a statute’s

constitutionality, courts consider the statute only as it is written, not how it operates, or may operate,

in practice. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015); Lykos, 330 S.W.3d at

908; see Peraza, 467 S.W.3d at 515.

A claim that a statute is unconstitutional “as applied” is a claim that the statute,

although generally constitutional, operates unconstitutionally as to the claimant because of his

3
The United States Supreme Court recognizes “a second type of facial challenge,” whereby
a law involving First Amendment freedoms may be invalidated as overbroad if “a substantial number
of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
United States v. Stevens, 559 U.S. 460, 473 (2010); State v. Johnson, 475 S.W.3d 860, 864–65 (Tex.
Crim. App. 2015) (recognizing that under First Amendment’s “overbreadth” doctrine, “a law may
be declared unconstitutional on its face, even if it may have some legitimate application and even
if the parties before the court were not engaged in activity protected by the First Amendment”).

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particular facts and circumstances. Lykos, 330 S.W.3d at 910; Gillenwaters, 205 S.W.3d at 537 n.3;

Ex parte Carter, 514 S.W.3d 776, 779 (Tex. App.—Austin 2017, pet. ref’d). A statute may be valid

as applied to one set of facts and invalid as applied to a different set of facts. Lykos, 330 S.W.3d at

910. An “as applied” constitutional challenge typically may not be resolved pretrial because it

depends on development of the specific facts of the case showing how the statute is being applied

to the defendant. Ex parte Carter, 514 S.W.3d at 779; see Lykos, 330 S.W.3d at 910 (“An ‘as

applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge

and reviewing courts have the particular facts and circumstances of the case needed to determine

whether the statute or law has been applied in an unconstitutional manner.”).

We review a challenge to the constitutionality of a statute de novo. Vandyke v. State,

— S.W.3d —, No. PD-0283-16, 2017 WL 6505800, at *5 (Tex. Crim. App. Dec. 20, 2017); Salinas,

464 S.W.3d at 366. The party challenging the statute normally bears the burden of establishing its

unconstitutionality. Vandyke, 2017 WL 6505800, at *5; Peraza, 467 S.W.3d at 514; Ex parte Lo,

424 S.W.3d 10, 15 (Tex. Crim. App. 2014); see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim.

App. 2016), cert. denied, 137 S. Ct. 1336 (2017) (“An individual bringing a challenge to a criminal

statute must ‘shoulder the burden to establish that [the statute] is unconstitutional.’” (quoting Luquis

v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002))). When confronted with an attack on the

constitutionality of a statute, we afford great deference to the Legislature and presume that the statute

is constitutional and that the Legislature has not acted unreasonably or arbitrarily. Vandyke,

2017 WL 6505800, at *5; Peraza, 467 S.W.3d at 514; Ex parte Lo, 424 S.W.3d at 14–15; Rosseau,

396 S.W.3d at 557; see Tex. Gov’t Code § 311.021 (stating that courts presume “compliance” with

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Texas and United States Constitutions). Bearing in mind this presumption, we examine Penal Code

sections 49.04 and 49.01(2)(B) together with the constitutional right that appellant contends

they offend.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially

a direction that all persons similarly situated should be treated alike.” Schlittler, 488 S.W.3d at 316;

see U.S. Const. amend XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);

Rosseau, 396 S.W.3d at 557. “A threshold for asserting an equal-protection challenge is

demonstrating that a classification discriminates among similarly situated individuals.” Modarresi

v. State, 488 S.W.3d 455, 467–68 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see Smith

v. State, 898 S.W.2d 838, 847 (Tex. Crim. App. 1995). Thus, our initial inquiry when reviewing an

equal protection argument is whether the challenged statute treats similarly situated persons

differently. Barker v. State, 335 S.W.3d 731, 734 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d); see Nonn v. State, 117 S.W.3d 874, 881–82 (Tex. Crim. App. 2003). If it does not, the

challenge must fail. Barker, 335 S.W.3d at 734; see Nonn, 117 S.W.3d at 882.

The crux of appellant’s argument, as presented in his motion to quash, is that the

statutory definition of “intoxicated” as having an alcohol concentration of 0.08 or more that is

incorporated into the DWI statute “unfairly applies” to “the protected class of alcoholics.” Appellant

maintains that it is “well settled” that alcoholics have a higher tolerance to alcohol than other

drinkers and therefore the 0.08 alcohol concentration level “unfairly discriminates” against those

who have the disease of alcoholism. He contends that the DWI statutory scheme allows for the

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prosecution of members of the “protected class of alcoholics” without ever showing that the

alcoholic defendant lost control of his (or her) mental or physical faculties.

However, section 49.01(2) provides two alternative definitions of intoxicated. The

first involves the loss of the normal use of mental or physical faculties; the second involves an

alcohol concentration of at least 0.08. See Tex. Penal Code § 49.01(2). The alternative definitions

are presented disjunctively, see id., indicating that only one must be satisfied to establish that a

person is legally intoxicated. Further, these alternative definitions apply to all persons charged with

an intoxication offense under Chapter 49. Thus, the alcohol concentration definition of intoxicated

allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without

showing the loss of mental or physical faculties for any defendant charged with an intoxication

offense under Chapter 49. Therefore, any defendant prosecuted for driving while intoxicated can

be found to be legally intoxicated based on an alcohol concentration of 0.08 or more without a

showing of the loss of mental or physical faculties—whether the defendant is an alcoholic or not.

Therefore, there is no classification in the statute that treats any persons, including appellant’s

defined “class” of alcoholics, differently than similarly situated persons: the 0.08 alcohol

concentration level applies to all offenders prosecuted for DWI. See Matchett v. State,

941 S.W.2d 922, 934 (Tex. Crim. App. 1996) (“Because those committing the same offense on the

same day are subject to the same statutory scheme, they are similarly situated and are similarly

treated. Appellant presents no equal protection violation.”) (internal citation omitted).

Furthermore, because a facial constitutional challenge seeks to establish that the

statute is unconstitutional and unenforceable as to any person to whom the statute applies, see Lykos,

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330 S.W.3d at 908, in order to successfully mount a facial challenge to sections 49.04 and

49.01(2)(B), appellant must establish that no set of circumstances exists under which those statutes

would be valid. He failed to do so. His argument implicitly concedes that the statutory scheme is

constitutional as it relates to offenders who are not alcoholics—that is, the 0.08 alcohol concentration

level appropriately applies to “temperate drinkers” who do not have a high tolerance to alcohol.

To the extent that appellant’s challenge could be construed to be an “as applied”

constitutional challenge to the DWI statutory scheme, his equal protection challenge likewise fails.

First, a pretrial motion to quash an indictment may be used only for a facial challenge to the

constitutionality of a statute. State v. Empey, 502 S.W.3d 186, 189–90 (Tex. App.—Fort Worth

2016, no pet.); Jimenez v. State, 419 S.W.3d 706, 714 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d); see Lykos, 330 S.W.3d at 910 (because contention that statute is unconstitutional as applied

requires recourse to evidence, it cannot be properly raised by pretrial motion to quash charging

instrument) (citing Gillenwaters, 205 S.W.3d at 536 n.4). Second, to prevail on an “as applied”

challenge here, appellant must show that sections 49.04 and 49.01(2)(B) yield an unconstitutional

result when they are applied to the facts and circumstances of his case. See Lykos, 330 S.W.3d at

910. He failed to do so. First, appellant presented no evidence to the trial court that alcoholics are

a protected class. He merely advanced this proposition based on his assertion that alcoholism is a

disease—an assertion made summarily during argument without presenting evidentiary support to

the trial court.4 Second, even if alcoholics are a protected class as appellant claims and the DWI

4
Appellant expands this proposition on appeal, claiming that because alcoholism is a disease
it qualifies as a “disability” under the Americans with Disabilities Act.

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statutory scheme treats alcoholics differently than other DWI offenders (which we have

concluded it does not), appellant offered no evidence at the hearing on the motion to quash (or

subsequently during trial) that he himself was an alcoholic and therefore part of the class purportedly

discriminated against.

In essence, appellant does not argue that members of his defined class of alcoholics

are treated differently than other DWI defendants under the statutes. Instead, he argues that they

should be treated differently. Appellant’s argument—complaining about the 0.08 alcohol

concentration standard being applied to alcoholics in the same manner that it is applied to offenders

who are not alcoholics—challenges the failure of the DWI statutory scheme to provide different

treatment of defendants who are alcoholics and, according to appellant, “maintain normal

functioning” with an alcohol concentration of 0.08 because of “a significantly higher tolerance to

alcohol.” In fact, he asserts in his brief that alcoholics “are grouped together like the average DWI

defendant, but should not be due to their involuntary illness.” This “deserving of different

treatment” argument does not demonstrate that similarly situated persons are treated differently and

thus, fails to establish an equal-protection violation. See Modarresi, 488 S.W.3d at 467 (rejecting

capital-murder defendant’s equal-protection challenge, which claimed that statute mandating

sentence of life without parole “unfairly targets” entire class—“women with mental illness

exacerbated by postpartum depression”—by subjecting them to mandatory sentence of life without

parole and disallowing mitigating evidence because all adult offenders convicted of capital murder

receive mandatory sentence of life without parole when State does not seek death penalty); see also

Smith, 898 S.W.2d at 847 (rejecting capital-murder defendant’s equal-protection challenge to statute

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prohibiting providing information regarding parole to jury in capital cases while permitting

such information in non-capital cases because defendant was treated same as all other

capital-murder defendants).

In sum, because the 0.08 alcohol concentration definition of intoxicated applies to all

DWI offenders, all similarly situated persons are treated alike under the DWI statutory scheme.

Therefore, appellant failed to establish that Penal Code sections 49.04 and 49.01(2)(B) violate equal

protection rights under the United States and Texas Constitutions or that the statutes are

unconstitutional on their face or as applied to him. Accordingly, the trial court did not err by denying

appellant’s motion to quash. We overrule appellant’s sole point of error.

CONCLUSION

Appellant failed to meet his burden of establishing that Penal Code sections 49.04

and 49.01(2)(B) are unconstitutional, either on their face or as applied to him, because they violate

equal protection rights. Consequently, the trial court did not err in denying appellant’s motion to

quash the indictment. We affirm the trial court’s judgment of conviction.

__________________________________________
Cindy Olson Bourland, Justice

Before Justices Puryear, Field, and Bourland

Affirmed

Filed: February 9, 2018

Do Not Publish

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