                                            OPINION
                                      No. 04-07-00618-CR

                                       Jeovany VARGAS,
                                           Appellant

                                                v.

                                     The STATE of Texas,
                                           Appellee

                      From County Court at Law No. 12, Bexar County, Texas
                                     Trial Court No. 922362
                           Honorable Michael E. Mery, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Alma L. López, Chief Justice
                 Catherine Stone, Justice
                 Karen A. Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: August 27, 2008

AFFIRMED

           Appellant Jeovany Vargas was convicted by a jury for the offense of driving while

intoxicated and the trial court assessed punishment at one year in the county jail, probated for a

term of two years and a $1,000.00 fine. Vargas’s sole point on appeal is that the trial court’s

instruction, that the jury may consider Vargas’s refusal to submit to a breath test as evidence

against him, was error because it was an improper comment on the weight of evidence. We
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agree. However, because the record fails to show egregious harm, we affirm the judgment of the

trial court.

                                       FACTUAL BACKGROUND

        On August 18, 2005, Vargas was stopped by Castle Hills Police Officer Clark Medina for

swerving and failing to use a signal when changing lanes. Upon approaching the vehicle, Officer

Medina noted slurred speech, a strong odor of intoxicants, and confusion on the part of Vargas.

After several failed field sobriety tests, Vargas was placed under arrest for suspicion of drunk

driving and transported to the Castle Hills police station. After Officer Medina explained the

consequences of refusing to provide a breath sample, Vargas refused. In accordance with section

724.061 of the Texas Transportation Code, the trial court admitted Vargas’s refusal to submit to

the breath test into evidence. Additionally, the trial court’s charge instructed the jury: “You are

instructed that you may consider the defendant’s refusal to submit to a breath test as evidence in

this case.” Defense counsel did not lodge an objection to the jury charge.

                                         JURY INSTRUCTION

        Article 36.14 of the Texas Code of Criminal Procedure governs the requirements of the

jury charge. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). Specifically, article 36.14

provides that the trial court shall deliver:

        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.

TEX. CODE CRIM. PROC. art. 36.14.

A.      Application of Texas Transportation Code Section 724.061

        Vargas concedes that his refusal to submit to a breath test is admissible evidence, but

argues that the trial court may not instruct the jury regarding the defendant’s failure to submit to



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a breath test. TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999). Vargas requests this Court

overrule its previous holding in Segura v. State, No. 04-05-00320-CR, 2006 WL 1748438, at *1

(Tex. App.—San Antonio June 28, 2006, no pet.) and apply the analysis contained in Hess v.

State, 224 S.W. 3d 511, 515 (Tex. App.—Fort Worth 2007, pet. ref’d). In Hess, the court held

that such an instruction was error because it singled out specific evidence and unduly

emphasized the defendant’s refusal to take a breath test while failing to clarify the law.

       The jury instruction in the present case, just as in Segura and Hess, mirrors the language

of section 724.061. TEX. TRANSP. CODE ANN. § 724.061 (“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.”); Segura, 2006 WL 1748438 at *1; Hess, 224 S.W. 3d at 515. The State argues, when the

court’s charge tracks the language of the applicable statutes, there is no error in that portion of

the charge. Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978).

       In Segura, this Court determined the identical instruction was not a comment on the

weight of the evidence:

       Although the instruction directs the jury’s attention to [the defendant’s] refusal to
       submit to a breath test, the instruction does not direct the jury to draw any
       particular inference from this fact; nor does it tell the jury how [the defendant’s]
       refusal related to the ultimate issue of intoxication. . . . The jury was thus free to
       draw whatever inference it wanted. By not requiring any particular inference to
       be drawn, the instruction does not assume the truth of the controverted issue—
       [the defendant’s] intoxication—and is therefore not a comment on the weight of
       the evidence.

Segura, 2006 WL 1748438 at *1. In direct conflict with Segura, the Hess Court held the same

instruction constituted an impermissible comment on the weight of the evidence because it

unjustifiably singled out a particular piece of evidence for special attention. Hess, 224 S.W.3d

at 515 (“[E]ven a seemingly neutral instruction about a particular type of evidence constitutes an

impermissible comment on the weight of the evidence.”). The Fort Worth appellate court



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reasoned that section 724.061 was a tool to assist the trial court in determining the admissibility

of certain evidence, it was not a “tool enacted for the benefit of the jury.” Id.; TEX. TRANSP.

CODE ANN. § 724.061. Moreover, by including the instruction in the jury’s charge, the trial court

drew attention to the defendant’s refusal to take the breath test. Hess, 224 S.W.3d at 515.

       A similar issue over the propriety of instructing the jury on a particular piece of evidence

arose in the area of flight following the commission of a crime. Flight is admissible as a

circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845,

859 (Tex. Crim. App. 1989). Yet, it is “well settled a jury instruction on flight is improper

because it comments on the weight of the evidence.” Santos v. State, 961 S.W.2d 304, 306 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d) (holding “the instruction assumes the existence of

flight. Even though the instruction constitutes an accurate statement of the law, it magnifies a

particular fact giving unfair emphasis to that fact”).

       We agree with the reasoning set forth in Hess. Hess, 224 S.W.3d at 515. The instruction

in the present case highlights Vargas’s refusal to submit to the breath test and, therefore, amounts

to an impermissible comment on the weight of the evidence. We, therefore, explicitly overrule

our previous holding in Segura. Segura, 2006 WL 1748438 at *1. Having found error, we next

address harm.

                                          HARM ANALYSIS

A.     Almanza v. State

       Perhaps relying on our prior opinion in Segura, defense counsel failed to object to the

charge. Absent an objection, Almanza requires the record show a defendant 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




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charge error in the absence of an objection to jury charge error). Egregious harm arises if the

error is so severe that it deprived the accused of a fair and impartial trial. Id. An appellate court

considers (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 Vargas’s trial counsel

failed to object, reversal is only required if Vargas suffered egregious harm from the trial court’s

error. Almanza, 686 S.W.2d at 171.

B.     Analysis

       Officer Medina’s testimony regarding his observations of Vargas provides a plethora of

evidence upon which the jury could have assessed guilt:

       (1)     swerving within his own lane;
       (2)     a strong smell of intoxicants;
       (3)     slurred speech;
       (4)     apparent confusion;
       (5)     failing two field sobriety tests; and
       (6)     refusing to submit to the requested breath test.

Although Vargas asserts that the State improperly argued his failure to submit to the breath test

during its closing argument, there is no dispute the evidence was properly admitted before the

jury. 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, any

comment by the State on Vargas’s failure to submit to the breath test was proper jury argument.

       Absent any evidence to the contrary, the jury could have assessed Vargas’s guilt, beyond

a reasonable doubt, based on other evidence presented at trial. See Brown v. State, 122 S.W.3d

794, 803-04 (Tex. Crim. App. 2003) (holding that similar instruction was “mild, neutral, and an

obvious common-sense proposition” and although error, could not be viewed, “in any sense,



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harmful under Almanza”). Moreover, the record lacks any evidence that the error was either

calculated to injure the rights of the defendant or deprived the defendant of a fair trial. See Hess,

224 S.W.3d at 515; Almanza, 686 S.W.2d at 171. Thus, Vargas failed to prove egregious harm

and we affirm the judgment of the trial court.


                                                  Rebecca Simmons, Justice


PUBLISH




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