Bartlett v. State

Decision Date26 November 2008
Docket NumberNo. PD-1461-07.,PD-1461-07.
PartiesRoy Bob BARTLETT, Appellant v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

George Scharmen, San Antonio, for Appellant.

Retha Cable, Assistant District Atty., Sinton, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

PRICE, J., delivered the opinion of the court in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

The appellant, Roy Bob Bartlett, was convicted of felony driving while intoxicated (DWI). Over the appellant's objection, the trial court instructed the jury at the conclusion of the guilt phase of trial that it was permitted to consider the fact that the appellant had refused to submit to a breath test. On appeal, the appellant asserted that this instruction constituted an impermissible comment on the weight of the evidence. The court of appeals rejected this argument, and affirmed the conviction. We granted the appellant's petition for discretionary review to examine this holding. We will reverse the court of appeals' judgment and remand the case.

FACTS AND PROCEDURAL POSTURE

The appellant was stopped for speeding by a state trooper while driving on August 7, 2005, in Aransas County. Suspecting that the appellant was intoxicated, the trooper asked the appellant, inter alia, to submit to a breath test. The appellant refused to take a breath test without the presence of his counsel. He was arrested for the offense of driving while intoxicated. At trial, the evidence of his refusal to submit to a breath test was admitted into evidence under Texas Transportation Code Section 724.061.1 That provision reads:

A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.

The appellant was convicted by the jury and sentenced to five years' confinement suspended by probation for a period of two years.

The single issue on appeal was whether the following jury instruction constituted an impermissible comment on the weight of the evidence:

You are instructed that where a Defendant is accused of violating Chapter 49.04, Texas Penal Code, it is permissible for the prosecution to offer evidence that the defendant was offered and refused a breath test, providing that he has first been made aware of the nature of the test and its purpose. A Defendant under arrest for this offense shall be deemed to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood.

The prosecution asks you to infer that the defendant's refusal to take the test is a circumstance tending to prove a consciousness of guilt. The defense asks you to reject the inference urged by the prosecution and to conclude that because of the circumstances existing at the time of the defendant's refusal to take such test, you should not infer a consciousness of guilt.

The fact that such test was refused is not sufficient standing alone, and by itself, to establish the guilt of the Defendant, but is a fact which, if proven, may be considered by you in the light of all other proven facts in deciding the question of guilt or innocence. Whether or not the Defendant's refusal to take the test shows a consciousness of guilt, and the significance to be attached to his refusal, are matters for your determination.

In an unpublished memorandum opinion, the court of appeals relied on two prior appellate decisions, Bright v. State and Finley v. State,2 to hold that because a refusal to take a breath test is admissible as evidence, and because the trial court instructed the jury that they should not rely solely on the evidence of the refusal to take a breath test, but should consider the appellant's refusal in the light of all other proven facts, the instruction did not express an opinion as to the weight of the evidence.3 We do not agree.

THE LAW

As a general rule, a trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case; it should not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any argument in its charge calculated to arouse the sympathy or excite the passions of the jury.4 The jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony, unless the law provides that the proof of any particular fact is to be taken as either conclusive or presumptive evidence of the existence of an ultimate fact, or where the law specifically directs that a certain degree of weight is to be attached to a particular item or species of evidence.5 Outside of these statutorily recognized exceptions, a trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur.6

There are three specific circumstances under which a trial court may single out a particular item of evidence in the jury instruction without signaling to the jury an impermissible view of the weight (or lack thereof) of that evidence. First, the trial court may specifically instruct the jury when the law directs it to attach "a certain degree of weight," or only a particular or limited significance, to a specific category or item of evidence.7 A ready example is Article 38.14 of the Code of Criminal Procedure, which requires the testimony of an accomplice to be corroborated before it can support a conviction.8 Another example would be an instruction limiting the jury's consideration of a particular item of evidence to certain purposes, under Rule 105 of the Texas Rules of Evidence.9 "[T]he 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."10

Second, the Legislature has expressly required the trial court to call particular attention to specific evidence in the jury charge when the law specifically identifies it as a predicate fact from which a jury may presume the existence of an ultimate or elemental fact.11 An example of such a statutory presumption can be found under Section 22.05 of the Penal Code, the deadly-conduct statute.12 Under Section 22.05(c), recklessness and danger, two separate elements of the offense of deadly conduct, may each be presumed if a person knowingly points a firearm at or in the direction of another.13

Third, the trial court may instruct the jury with respect to evidence that is admissible contingent upon certain predicate facts that it is up to the jury to decide. For example,

[w]hen the law specifically assigns to jurors the task of deciding whether certain evidence may be considered, as it does under [Article 38.23 of the Code of Criminal Procedure], 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.14

Under these circumstances, the law authorizes the singling out of particular evidence, and for the trial court to do so does not violate Article 36.14 or 38.04.

A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the "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."15 Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention.16 In the instant case, the question is whether the trial court's seemingly neutral explanation of the law with respect to the admissibility of the refusal to take a breath test constituted such an impermissible comment.

Shortly before the court of appeals issued its opinion in this cause, the Fort Worth Court of Appeals held that an instruction regarding the use of evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of evidence because it singles out a particular item of evidence.17 In Hess, the trial court expressly instructed the jury that it "may consider the Defendant's refusal to submit to a breath test as evidence in this matter."18 The court of appeals held that this instruction was objectionable, explaining:

Through the instruction, the court commented on the evidence by effectively highlighting Hess's refusal to take the breath test. Although the jury was certainly free to consider Hess's refusal to submit to the test as evidence in the case, the court was not justified in singling out that specific piece of evidence and inviting the jury to pay particularized attention to it. Further, Hess's refusal to take the test did not constitute evidence that was entitled to special consideration under the law, nor did the instruction clarify the law in any way for the jury. Therefore, the instruction was wholly unnecessary, and the trial court erred in including it in the charge.19

For the reasons that follow, we agree with the Fort Worth Court of Appeals that an instruction to the jury with respect to the admissibility of a defendant's refusal to take a breath test constitutes an improper comment on the weight of the evidence.

ANALYSIS

In the instant case, the trial court, without mentioning any of the other evidence introduced at trial, set out a lengthy explanation of the statute governing the admissibility of the evidence of appellant's refusal to take a breath test and also described the arguments of both parties regarding the significance of that...

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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2019 Contents
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    ...the facts, or use any argument in its charge calculated to arouse the sympathy or excite the passions of the jury. Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008). There are three specific circumstances under which a trial court may single out a particular item of evidence in the j......
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