            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1461-07



                             ROY BOB BARTLETT, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE THIRTEENTH COURT OF APPEALS
                          ARANSAS COUNTY

       J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION

       While a trial court should use language in the jury charge that tracks the language of the

statute, it should not, by language in the charge, appear to accentuate the importance of a piece of

evidence. That is what happened here.

       The first paragraph of the charge properly tracked the language of the statute as to the

admission of the defendant’s refusal to take a breath test. If the charge had stopped there, there

would have been no issue for us to address, but the next two paragraphs drew attention to the refusal

and were likely to have enhanced the apparent importance of it as evidence of guilt. The trial court
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attempted to be even-handed in its discussion, but the very fact of discussion of this piece of

evidence and lack of discussion about other evidence raised a high probability that the discussion

affected the weight given to that piece of evidence by the jury.

       I join the opinion of the Court.



Filed: November 26, 2008
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