Is there a case allowing the Trial Court to give an instruction in the jury charge that a breath test refusal can be held against a defendant in guilt/innocence portion of trial?

My judge may give such an instruction if I can provide a case allowing him to do so.

How about Smith v. State, 8 S.W.3d 450, 451 (Waco 1999, no pet.)?

Request the language in the court's charge when you have a breath test refusal:

You are instructed that you may consider the Defendant's refusal to submit to a breath test as evidence in this case.

Tex. Trans. Code section 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen

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.

Is there an argument that this is an improper comment on the evidence by the judge? See Brown v. State, 122 S.W.3d 794, 801-802 (Tex. Crim. App 2003)(instruction that "intent or knowledge may be inferred by acts done or words spoken" held to be an improper comment on the weight of the evidence by the trial judge). I know the transportation code makes it admissible, but I worry a bit here.

The statute only says that the evidence of a refusal is admissible. That doesn't mean it has to mean anything in particular when it is admitted. Some might argue that isolating a particular piece of evidence and giving an instruction that it is admissible is tantamount to giving it more weight than the other evidence in the case.

There are lots of statutes saying a confession is admissible, but we don't give an instruction saying that.

A number of our judges have been giving that instruction for a number of years. An alternative would be to blow up the DIC 24 on a poster Board or with Power Point (I assume we are all putting the DIC-24 into evidence in our cases) and reading the applicable language from it in Closing. As has been pointed out above I am not worried about putting it in the charge.

My next trial I am going to ask my judge for this jury instruction. If its granted and I have to fight the appeal (I brief and argue my own appeals) it may be great opportunity to argue a case to the Court of Crim Appeals!

Thanks for the help

I don't know about your jurisdiction, but the surest route to a case returning on appeal in our section of the state is an error in the Jury Charge.

I'm not even sure that it can be subjected to a harmless error analysis . . . perhaps the more Appellate minded lurkers could pipe in? (Rolater, that means you . . . . )

Blow it up or .PPT it, but I'd be extemely hesitant about putting it in the charge. Your appellate section will probably love you for it.

Just my two cents . . .

When it comes to doing things in trial that could create issues on appeal, my philosphy is that you should ask yourself, "Do I really need to do this?" Generating appellate issues out of legal curiosity is a dangerous way to litigate, particularly for prosecutors.

So, in the case of this instruction, what is it that you really get from the instruction? At voir dire, you can inform the jury that such evidence is admissible. You can even ask them if they can consider the evidence.

During trial, you can bring out the evidence and ask questions in a way that makes it clear you think the defendant had something to hide (his intoxication).

During final argument, you can remind the jury of what you said during voir dire, the questions you asked during trial, and the defendant's refusal. Now, what, exactly, would the written instruction of the judge add to that process, other than an appellate issue?

I seriously doubt that the jury is going to be convinced the refusal means the defendant was intoxicated just because there is an instruction that the evidence was admissible. So was the rest of the evidence they heard.

In short, I think the instruction is an unnecessary crutch that makes for an appellate issue.

Having said that, I do have to note that I have great respect for the opinions of Richard Alpert and the suggestions he makes in his DWI book (available at tdcaa.com, by the way). He may well ultimately be proven correct. I just don't want to be the county that litigates the issue.

quote:

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Originally posted by Lee Westmoreland:
I don't know about your jurisdiction, but the surest route to a case returning on appeal in our section of the state is an error in the Jury Charge . . . . I'm not even sure that it can be subjected to a harmless error analysis . . . perhaps the more Appellate minded lurkers could pipe in? (Rolater, that means you . . . . )

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Lee, you better be careful or we'll get you transferred over here to write briefs. Jury charge error is still a good (maybe best) way to get a reversal, but it is subject to harmless error review. In fact, the instruction critcized in Brown was held to be harmless on the facts of that case.

I am not an appellate attorney but I do have one that works with our section and our use of that instruction has not caused her a problem (so far).
As I suggested above there are a number of ways to get that point across to the jury short of putting it in the charge. But the jury charge does have a special place in jurors hearts and verdicts. That's probably why we fight so much about what goes into it.

Hess v. State, (Fort Worth - 4/5/07) (instruction that breath test refusal may be considered as evidence was improper comment on weight of evidence, but harmless)

Hess

Having been at the receiving end of both these opinions--the first directly and the second indirectly--I strongly suggest that every prosecutor carefully review their charges for instructions that might be perceived as comments on the weight of the evidence. Both these cases demonstrate that just because language has been in your charges for years does not mean it is valid and sacrosanct. In these cases the language was harmless, will it be so in your case?

JAS

Refusal to provide a breath or blood specimen is admissible evidence, but what allows us to single out this particular piece of evidence for a jury instruction? I am not too disappointed in the 2nd COA decision in Hess and I would not be surprised if it is followed in other appellate jurisdictions.

We really don't need the instruction. Why risk a remand?

CEO