DUI/DWI: Instruction On Defendant’s Refusal To Take A Breath Test As Improper Comment On The Evidence (Texas)

Lindley v. State (UNPUBLISHED)[excerpt after the jump] held that the trial judge erroneously instructed the jurors regarding the defendant’s refusal to take a breath test. (See also Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008).)

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34.7 - Refusal To Submit To Blood Alcohol Test
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Lindley v. State, slip opn. pp. 10-12 (Tex. App. Waco, No. 10-08-00330-CR,  Feb. 3, 2010)
[NOTICE: This opinion is UNPUBLISHED.]
Although it was not raised in a separate issue but as a basis for an allegation of ineffective assistance  of counsel, we will directly address the charge error based on the Bartlett decision by the Court of Criminal Appeals. In Bartlett, the Court of Criminal Appeals stated 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." Bartlett, 270 S.W.3d at 152. The charge to the jury contained the following instruction: "You are instructed that you may consider the Defendant's refusal to submit to a breath test, if he did refuse, as evidence in this case." This instruction constitutes an impermissible comment on the weight of the evidence by the trial court, and was therefore, erroneous. Lindley did not object to this instruction to the trial court.

In the absence of an objection, the record must show that Lindley has suffered not only actual harm, but egregious harm resulting from the incorrect charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing the proper standard of review for jury charge error in the absence of an objection to jury charge error). Egregious harm arises if the error is so severe that it deprived Lindley of a fair and impartial trial, affected the very basis of the case, vitally affected a defensive theory, or otherwise deprived him of a valuable right. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Warner v. State, 245 S.W.3d 458, 461-62 (Tex. Crim. App. 2008). In making this determination, we consider (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record as a whole. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993); Almanza, 686 S.W.2d at 171. Because Lindley's trial counsel failed to object, reversal is only required if Lindley suffered egregious harm from the trial court's error. Almanza, 686 S.W.2d at 171.

In his argument regarding harm pursuant to the ineffective assistance of counsel issue, Lindley asserts that he was harmed by the State arguing that he intentionally failed to submit to the breath test and that he was again playing games with the intoxilyzer during its closing argument. However, the evidence regarding his efforts at taking the breath test was properly admitted before the jury. See TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999) ("a person's refusal . . . to submit to the  taking of a specimen of breath or blood . . . may be introduced into evidence at the person's trial.")

Proper jury argument includes summation of the evidence presented at trial, reasonable deduction drawn from that evidence, answer to the opposing counsel's argument, and a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Thus, the comments by the State regarding their perception of Lindley's failure to submit a valid breath specimen were not improper jury argument. Certainly, Lindley was able to argue the opposite in his closing argument, although he chose not to do so.

The State did make reference to the instruction in their closing argument one time when they stated that "the refusal, the judge told you in his instructions that you are allowed to consider that as evidence." The charge as written, however, did give the jury the option of determining whether they believed there was a refusal or not. However, when we consider the record as a whole, we do not find that this comment deprived Lindley of a fair trial or was calculated to injure his rights.