Atkinson v. State

• Decision Date: 01 May 1996
• Docket Number: No. 0248-94,0248-94
• Citation: 923 S.W.2d 21
• Parties: Michael Hughes ATKINSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 21

923 S.W.2d 21

Michael Hughes ATKINSON, Appellant, v. The STATE of Texas, Appellee.

No. 0248-94.

Court of Criminal Appeals of Texas En Banc.

May 1, 1996.

Abe Factor, Robert Ford, Fort Worth, for appellant.

Steven W. Conder, Assist. Dist. Atty., Fort Worth, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted by a jury of driving while intoxicated (DWI) based partly on a chemical analysis of his breath which indicated that he had an alcohol concentration of .10 or more while operating a motor vehicle. Tex.Rev.Civ.Stat.Ann. art. 6701l-1 (West Supp.1994). The trial judge assessed his punishment at confinement for 120 days and a $500 fine, probated over two years. On direct review, the Second Court of Appeals held that the trial judge should have told the jury to disregard evidence of alcohol concentration in appellant's system if the chemical analysis was administered in violation of Department of Public Safety (DPS) regulations. Because the Court also held that the error was not harmless by Rule 81(b)(2) standards, it reversed appellant's conviction and remanded the cause for a new trial. See Tex.R.App.Proc. 81(b)(2). Atkinson v. State, 871 S.W.2d 252, 257 (Tex.App.--Fort Worth 1994). We granted the State's petition for discretionary review to answer two questions: (1) whether instructing the jury conditionally to disregard the breath analysis would have been an impermissible comment on the weight of the evidence, and (2) if not, whether the Court of Appeals applied the correct standard for evaluating harm arising from failure to give such an instruction.

I.

Evidence obtained in violation of the law must be excluded from jury consideration in criminal cases on request of the defendant. Tex.Code Crim.Proc. art. 38.23. The judge should withhold such evidence from the jury altogether when it is inadmissible purely as a matter of law. Lackey v. State, 638 S.W.2d 439, 454 (Tex.Crim.App.1982). But, when there are disputed issues of fact affecting the legality of its seizure, the question of exclusion may be tried to the jury. Marrs v. State, 647 S.W.2d 286 (Tex.Crim.App.1983); Chaires v. State, 480 S.W.2d 196 (Tex.Crim.App.1972). In such event, the judge must include in his final charge an instruction that, if the jury "believes, or has a reasonable doubt, that the evidence was obtained in violation of ... any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, ... then and in such event, the jury shall disregard any such evidence so obtained." Tex.Code Crim.Proc. art. 38.23; Reynolds v. State, 848 S.W.2d 148 (Tex.Crim.App.1993); Hall v. State, 649 S.W.2d 627 (Tex.Crim.App.1983).

Whether the results of tests performed by law enforcement officers to determine the concentration of alcohol in a person's system may be received in evidence at a criminal trial is controlled by a statute, which provides in pertinent part that "[a]nalysis of a specimen of the person's breath, to be considered valid ..., must be performed according to rules of the Texas Department of Public Safety[.]" Texas Rev.Civ.Stat.Ann. art. 6701l-5, § 3(a), (b) (West Supp.1995). Rules adopted by the DPS to implement this statute include the requirement that a technician continuously observe the person tested for at least 15 minutes before administering him the test. See 37 Tex.Admin.Code § 19.3. Because the evidence adduced at trial in the instant cause raised an issue of fact whether the person who tested appellant complied with this rule, appellant requested that the court's final charge to the jury include the following instruction. ¹

You are instructed that under our law in order to be considered valid, a chemical test must be performed according to the rules and regulations governing such test by the Department of Public Safety concerning proper techniques and methodology.

Included in those regulations are:

(1) continuous observation of the person tested for a minimum of fifteen (15) minutes prior to the actual test;

. . . . .

If you have found beyond a reasonable doubt that each of these regulations were complied with you may consider such test and give it whatever weight you choose.

If you do not so find or if you have a reasonable doubt as to whether these regulations were complied with you may not consider said test for any purpose and shall not refer to it further in your deliberations.

The State argues that this instruction, if given, would have amounted to a comment on the weight of the evidence, ² in violation of article 36.14 of the Code of Criminal Procedure, which provides that,

... in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.

See also Tex.Code Crim.Proc. art. 38.05 (trial judge may not, "at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.")

We have interpreted the prohibition against judicial comment contained in these statutes to forbid any discussion by the trial judge in the jury's presence of evidence adduced at trial which might suggest to the jury the judge's personal estimation of the strength or credibility of such evidence or which might tend to emphasize such evidence by repetition or recapitulation. Hathorn v. State, 848 S.W.2d 101, 114 (Tex.Crim.App.1992) (jury charge may not assume truth of facts in issue); Caldwell v. State, 818 S.W.2d 790 (Tex.Crim.App.1991) (jury charge may not single out a part of the evidence relevant to an issue of fact and indicate what result should follow if such evidence is believed); Zani v. State, 758 S.W.2d 233, 245 (Tex.Crim.App.1988) (jury charge may not call attention to some of the evidence when the law does not prescribe that such evidence should receive special consideration by the jury); Browning v. State, 720 S.W.2d 504 (Tex.Crim.App.1986) (jury charge may not create a presumption not authorized by statute); Waller v. State, 581 S.W.2d 483, 484 (Tex.Crim.App.1979) (panel opinion, reh'g en banc denied) (jury charge may not create an affirmative defense not authorized by statute). This rule assures independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties. See Walker v. State, 823 S.W.2d 247, 250 n. 2 (Tex.Crim.App.1991) (Clinton, J., concurring).

But there are clearly circumstances in which the judge must call the jury's attention to certain evidence in order to accomplish other, equally important objectives of the law. For example, our law sometimes provides that certain facts may be presumed from proof of other facts and that the jury should be instructed accordingly when the evidence will support a finding of such other facts. Yet it would be futile to instruct the jury on the effect of a statutory presumption if the judge were not allowed specifically to identify in his instructions the evidence giving rise to it. See Easdon v. State, 552 S.W.2d 153, 155-56 (Tex.Crim.App.1977) (jury instruction on former statutory presumption that intoxication may be inferred from alcohol concentration is not an impermissible judicial comment on the weight of evidence). Likewise, the receipt of evidence for a limited purpose would be impossible were the judge forbidden to indicate to the jury which evidence was subject to such limitation. Taylor v. State, 50 Tex.Crim. 560 100 S.W. 393 (1907). Because jurors are bound to receive the law from the court, judges must have authority to inform jurors of any special legal consequences which follow from the receipt of particular evidence and of any contingencies to which the receipt of such evidence is subject under the law.

These considerations apply equally to the question presented in this case. When the law specifically assigns to jurors the task of deciding whether certain evidence may be considered, as it does under article 38.23, it is essential that jurors be told exactly what evidence is in question. Otherwise, they cannot pass upon its admissibility. While this procedure may have the incidental effect of emphasizing certain evidence to the jury, that consequence simply cannot be avoided in a system which vests the jury with authority to decide some questions of admissibility. Were we to implement the prohibition against judicial comment as the State suggests, there could never be another jury instruction submitted under authority of article 38.23. Accordingly, we hold that a jury instruction which identifies evidence requiring special jury consideration under the law, and which sets out the law governing such consideration, does not violate the article 36.14 prohibition against judicial comment so long as it does not intimate that the jury should resolve any fact question in a certain way or that any of the evidence bearing upon such a fact question should be given greater weight or credibility than other evidence bearing on the same question.

By this reckoning, it is clear that the instruction requested by appellant in the instant cause was not an impermissible comment on the evidence. The State does not even imply that such requested instruction went further than to identify the evidence about which a question was raised under article 38.23, and to inform the jury accurately of the circumstances under which such evidence could legally be considered on the question of appellant's guilt. In particular, the...