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Click here for the full text of this decision FACTS:Just before midnight on Jan. 26, 2005, Brandon Allison, a motorist traveling westbound on State Highway 114 in Denton County, contacted the city of Keller Police Department to report that he observed a vehicle swerving dangerously close to other traffic. Allison continued to follow the vehicle as he remained on the line with the police dispatcher so that he could pinpoint the location of the swerving motorist to the responding officer. Within five minutes, Officer Jimmy Rodriguez arrived on the scene. As Rodriguez approached the two cars, he asked Allison to activate his hazard lights so that he could distinguish between Allison’s vehicle and the one that Allison had reported. Rodriguez then positioned his patrol cruiser behind the reported vehicle and conducted a traffic stop after the driver, who was later identified as Ronald John Hess, failed to maintain a single lane of traffic and switched lanes without signaling. Upon approaching the vehicle, Rodriguez testified that he immediately smelled the odor of alcohol and noticed that Hess’ eyes were bloodshot. The officer then asked Hess to exit the vehicle and perform three standard field sobriety tests. The record indicates that Hess exhibited all six clues of intoxication on the horizontal gaze nystagmus test, seven of the eight clues on the walk-and-turn test and three out of four clues during the one-leg stand test. Therefore, Rodriguez determined that Hess was intoxicated and arrested him for driving while intoxicated. A subsequent inventory search of Hess’ vehicle revealed three bottles of bourbon and a medium size Wendy’s cup in the center console that contained a brownish liquid that smelled of alcohol. At the police station, Hess refused to submit to a breath test but did say that the drink found in the center console was his second drink of the day. On April 7, 2005, Hess was charged by information with DWI. He pleaded not guilty to the charge, and the case was tried to a jury. At the outset of trial, the court tendered a copy of its proposed jury charge to the parties. In the proposed charge, the court instructed the jury that it “may consider the Defendant’s refusal to submit to a breath test as evidence in this matter.” Hess objected to that instruction, arguing that it constituted an improper comment on the weight of the evidence. The trial court, however, overruled the objection. At the close of the evidence, Hess’ attorney re-urged his previous objection to the charge and alternatively requested that the court instruct the jury that it may consider a number of facts that were admitted into evidence and were favorable to Hess as evidence in the case. Nevertheless, the trial court again overruled Hess’ objection to the charge and denied his request regarding the additional instructions. The jury subsequently convicted Hess of DWI. Hess appealed. HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 36.14, the court stated, provides that: “in each felony case . . . the judge shall . . . deliver to the jury . . . 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.” In addition, the court noted that Texas Transportation Code �724.061 provides that 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 but that “nothing in the statute authorizes a trial court to isolate that fact from all other evidence presented in the case and specifically instruct the jury that it may consider the refusal as evidence.” Thus, the court held that the instruction included in the charge in this case constituted an improper comment on the weight of the evidence in violation of Art. 36.14. Through the instruction, the court commented on the evidence by effectively highlighting Hess’ refusal to take the breath test. Finding that the trial court erred, the court stated that a “properly preserved error will require reversal as long as the error is not harmless.” But after reviewing the entire jury charge, the state of the evidence and the arguments of counsel, the court held that the instruction in the case, albeit improper, was not harmful to Hess. Absent the instruction in question, the court stated, the charge was wholly unexceptional. It contained no other erroneous or questionable sections and the application paragraph properly instructed the jury to find Hess guilty if it found from the evidence beyond a reasonable doubt that on or about Jan. 26, 2005, Hess drove or operated a motor vehicle in a public place located in Denton County while intoxicated. Moreover, given the weight of the evidence as a whole, despite the fact that both parties admitted that the case was not a “slam-dunk, falling-down drunk” type of case, the court did not find that the trial court’s instruction harmed Hess. Additionally, the court noted that once the trial court admitted testimony regarding Hess’ refusal to take the breath test, both parties argued that fact to the jury. In doing so, the state argued that Hess chose not to submit to the test because he knew he was in fact intoxicated. The defense countered by asserting that Hess’ refusal to supply a breath specimen was not indicative of guilt. Hess’ defense attorney argued that by declining a breath test, Hess simply exercised his rights under the law. Therefore, the court stated that the jury did not need any judicial instruction to focus its attention on the refused test. OPINION:McCoy, J.; Holman, Walker and McCoy, J.J.

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