Reversed and Rendered in Part, Reversed and Remanded in Part, and
Majority and Dissenting Opinions filed May 28, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00706-CR

                         JOEL NAVARRO, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 15
                           Harris County, Texas
                       Trial Court Cause No. 1836127


                 DISSENTING OPINION
      When police responded to a single-vehicle freeway accident, they found the
vehicle’s two occupants — appellant and his girlfriend — in the middle of the
freeway. Both were injured. A motorist reported that he had seen their truck veer
into the highway’s median. The truck flipped three times, ejecting the girlfriend
and leaving her unconscious. At the scene, appellant admitted to a police officer
that he sat down behind the wheel of the truck and turned the key. Appellant later
admitted to having consumed five beers before getting behind the wheel. The jury
convicted appellant of driving while intoxicated (“DWI”). Today, the court
reverses the conviction.

         In an apparent first in the history of Texas jurisprudence, the majority holds
the trial court erred in defining a term for the jury using the same unambiguous
language the Texas Legislature used to define that term in the statute establishing
the charged offense. After finding error, the majority also finds harm despite
overwhelming evidence that appellant was driving while intoxicated.                   Seeing
neither error nor harm, I respectfully dissent.

                                       The Jury Charge

         In the jury charge for the guilt/innocence phase, the trial court defined
“alcohol concentration” as “the number of grams of alcohol per 100 milliliters of
blood.” Appellant objected and requested the trial court to insert the word “whole”
in this definition, so that the definition would read “the number of grams of alcohol
per 100 milliliters of whole blood.” The trial court overruled appellant’s objection
and refused to submit the definition in the form appellant requested.

         Article 36.14 of the Code of Criminal Procedure requires a trial court to
provide a written jury charge distinctly setting forth the law applicable to the case.1
The definition the trial court submitted tracks the plain language the Texas
Legislature chose to define “alcohol concentration” in the DWI statute.2 In this
definition, the trial court set forth the law applicable to the case. 3 A jury charge

1
 See Tex. Code Crim. Proc. art 36.14 (West, Westlaw through 2013 3d C.S.); Casey v. State,
215 S.W.3d 870, 886 (Tex. Crim. App. 2007).
2
 See Tex. Penal Code Ann. § 49.01(1) (stating that “‘[a]lcohol concentration’ means the number
of grams of alcohol per . . . 100 milliliters of blood”) (West, Westlaw through 2013 3d C.S.).
3
    See Casey, 215 S.W.3d at 886–87.

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that tracks the language of a particular statute is a proper charge on the statutory
issue.4

                                                No Error

          Citing a leading dictionary and a medical textbook, the majority explains
that the plain meaning of the term “blood” is whole blood and concludes the trial
court erred in refusing to substitute the term “whole blood” for the term “blood”
because the charge had a “variable” meaning in the eyes of the jury. The majority
concludes the charge had a variable meaning because the State’s expert witness did
not know whether the term “blood” meant “whole blood” in a legal context. The
expert did not testify that the term meant blood plasma. The expert explained that
blood plasma and whole blood are different in that the Houston Police Department
crime lab uses whole blood if it is available and converts blood plasma into whole
blood if whole blood is not available. In response to a question asking if the expert
was aware whether Texas law required whole blood or blood plasma, the expert
stated:

         Without -- we report all values as the blood alcohol whole blood
         equivalent. I know we do run serum and plasma and then convert
         them to the whole blood equivalent and that is standard practice
         through the United States. I’m not going to go off and venture to say
         what Texas [l]aw specifically delineates in their statutes.
The majority concludes the State obfuscated the meaning by objecting to any
suggestion that whole blood is the sole unit of measurement under the statute. But,
the trial court overruled those objections.

         Neither appellant nor the majority cite, and research has not revealed, any
Texas precedent holding that the trial court’s definition of “alcohol concentration”


4
    See Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994).

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is erroneous or that appellant’s proffered definition must be submitted. Nor has
research revealed any Texas precedent holding that a trial court errs in submitting a
jury charge that tracks the applicable Texas statute. This court should not do so.
Instead, the court should conclude that the trial court did not err in overruling
appellant’s objection and refusing to submit the definition in the form appellant
requested.5 Because the trial court did not err, there is no need to conduct a harm
analysis.

                                            No Harm

          Even presuming for the sake of argument that the trial court erred in
rejecting appellant’s proposed jury charge, the error is harmless. If a jury charge
contains error, an appellate court must analyze that error to determine whether it is
harmful.6          Because appellant timely objected to the charge, this court should
reverse if the defendant suffered “some harm.”7 In assessing harm under this
standard, the court is to weigh (1) the jury charge as a whole; (2) the arguments of
counsel; (3) the entirety of the evidence; and (4) any other relevant factors present
in the record.8 Even though the “some harm” standard is a low threshold, to find
“some harm” the reviewing court must find actual harm, rather than just theoretical
harm.9 Neither party bears the burden on appeal to prove harm or harmlessness.10

          In assessing the jury charge as a whole, the majority notes that the charge
required the jury to find appellant guilty if the jury determined appellant was


5
    See Casey, 215 S.W.3d at 886; Riddle, 888 S.W.2d at 8.
6
    Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
7
    See id.
8
    See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
9
    Id.
10
     Id. at 462.

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intoxicated under either an impairment theory or a per se theory. The majority
finds “some harm” from the charge because the jury may have disregarded the trial
court’s unambiguous instructions and found that appellant was intoxicated based
solely on a finding that appellant’s blood plasma had an alcohol concentration of
0.08 or more. In analyzing counsel’s closing arguments, the majority notes the
State may have emphasized the alleged error in the jury charge. As the majority
acknowledges, however, in the balance of appellant’s argument he argues he was
not the driver—an argument the jury rejected—and that the evidence did not show
he was impaired under the impairment theory of intoxication.

       The State presented substantial evidence that appellant was intoxicated
under both per se and impairment theories.                The alcohol concentration of
appellant’s blood plasma was .158. The expert testified that on average 16 percent
of whole blood is consumed by cellular material. According to the expert, blood
plasma does not contain that material, which means the alcohol concentration of
blood plasma, on average, is 16 percent higher than the alcohol concentration of
whole blood. Using this calculation, the expert converted appellant’s plasma-
alcohol concentration of .158 to a whole-blood-alcohol concentration of .132, well
above 0.08.11

       The majority emphasizes the expert’s testimony that the percentage of a
whole blood cell consumed by cellular material can vary under certain
circumstances, including blood cancer.            The expert noted that in the case of
leukemia, 50 percent to 60 percent of an affected individual’s whole blood could
contain cellular material. The majority notes that if appellant’s blood-cell
11
   Significantly, to the extent the jury was relying upon the alcohol-concentration part of the
definition of “intoxicated,” the jury was asked to determine whether the evidence proved beyond
a reasonable doubt that the blood-alcohol concentration was .08 or greater; the jury was not
asked to make any determination regarding an alcohol concentration of 0.15 or higher.

                                              5
composition mirrored that of a cancer patient, then appellant’s whole-blood-
alcohol concentration would have been .079, just under the legal limit of .08. But,
appellant’s blood composition did not mirror a leukemia patient’s blood
composition.

       The record evidence contains appellant’s medical records.12 Among them is
a hematology report.13 This report contains a complete blood count with reference
ranges. The report shows that appellant’s red blood cell count, hemoglobin level,
and platelet count were all within the reference range and that only appellant’s
white blood cell count was outside of the reference range.                         Appellant’s
hematologic history is checked as “normal.” Appellant’s medical record contains
no notation of a leukemia diagnosis or any other blood or bone marrow disorder.
This evidence weighs against the conclusion that appellant’s plasma blood-alcohol
concentration was 50 percent to 60 percent higher than his whole blood-alcohol
concentration. Considering this evidence in light of the expert’s testimony that, on
average, an individual’s plasma blood-alcohol concentration is 16 percent higher
than the individual’s whole blood-alcohol concentration, leads to the conclusion
that appellant’s whole blood-alcohol concentration was over the legal limit of .08.
Under a per se theory, the evidence supporting appellant’s conviction is strong.

       The evidence also shows appellant was intoxicated under the impairment


       12
          The trial court advised the jury that exhibits would be delivered to the jury room if
requested. This instruction accords with Texas Code of Criminal Procedure Article 36.25, which
provides that exhibits must be furnished to the jury upon the jury’s request. See Tex. Code Crim.
Proc. Ann. art. 36.25 (West, Westlaw through 2013 3d C.S.).
       13
          The majority speculates about whether the medical records went into the jury room and
whether the jury understood what the hematology report meant. The relevant inquiry is whether
the report was part of the evidence the jury could consider. It was. In determining harm under
Almanza, this court must consider the entire record. See Arrington v. State, 451 S.W.3d 834,
840–44 (Tex. Crim. App. 2015) (reversing court of appeals for finding error harmful without
considering entire record).

                                               6
theory.14 A paramedic who arrived on the scene of the accident testified that
appellant told him (1) appellant had consumed four alcoholic beverages and (2)
appellant was the driver of the truck. Medical records admitted into evidence
include notes from a social worker. According to the notes, appellant told the
social worker he had been drinking before the accident; appellant placed his
consumption count at five beers rather than the four beers he had told the
paramedic.15 Evidence shows that appellant was driving the truck on the interstate
in light traffic and good conditions when the truck veered suddenly and sharply
into a concrete barrier with enough force to roll the truck three times. Other
evidence shows the circumstances of the single-vehicle crash suggested it was an
alcohol-related event based on appellant’s admission to having consumed four or
five beers before the crash as well as appellant’s behavior at the scene, which
included lying to police officers.16 There are no other relevant factors.17

       Weighing the jury charge as a whole, the arguments of counsel, the evidence
presented in the case, and concluding there are no other relevant factors, this court
should conclude that any error by the trial court is harmless because of the
overwhelming evidence of appellant’s guilt.18


                                         Conclusion

       14
           See Butler v. State, 981 S.W.2d 849, 857–58 (Tex. App.—Houston [1st Dist.] 1998,
pet. ref’d) (holding no harm resulted from charge error relating to one theory of guilt because
evidence supported guilt under alternate theory).
       15
          See Atkins v. State, 990 S.W.2d 763, 769 (Tex. App.—Austin 1999, pet. ref’d) (holding
jury-charge error harmless in light of evidence the defendant was intoxicated, including
admission of drinking multiple beers).
       16
            See id.
       17
          The expert’s de minimis calculation errors did not significantly affect the evidence of
appellant’s whole-blood-alcohol concentration.
       18
            See id.

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      The trial court charged the jury in accordance with Texas law. The trial
court did not err in refusing appellant’s request to add language to the jury charge.
Even if the trial court had erred in refusing appellant’s request, the error would be
harmless because the evidence of appellant’s guilt is overwhelming. Therefore,
this court should reverse the trial court’s judgment and remand this case to the trial
court to reform the judgment to reflect a conviction for the Class B misdemeanor
under Penal Code section 49.04(a), and to conduct a new punishment hearing.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby
(Christopher, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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