                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-430-CR


RODNEY DICK HELM, JR.                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

      Rodney Dick Helm, Jr. appeals from his conviction for driving while

intoxicated (“DWI”). In three points, he complains that the trial court erred by

overruling his objection to a jury charge instruction, that the trial court abused

its discretion by overruling his motion for new trial complaining of that jury

instruction, and that the improper jury instruction harmed him.        The State

agrees that the trial court erred by giving the improper jury instruction but

argues the error was harmless. We affirm.
                                      Facts

       While waiting at a stop sign, Officer Ismael Espinoza of the Fort Worth

Police Department observed Appellant turn in front of another truck, which had

to slam on its brakes to avoid a collision and skidded.        Officer Espinoza

considered the turn dangerous. Appellant drove past Officer Espinoza and into

the parking lot of a striptease bar. Officer Espinoza then made a u-turn and

followed Appellant into the lot. His overhead lights were not on. He parked

behind Appellant and saw Appellant “moving something or placing something

or possibly retrieving something” on his vehicle’s floorboard. Appellant exited

his   truck   and   walked   toward   the   bar’s   entrance, swaying   and   not

acknowledging Officer Espinoza’s presence.

       Officer Espinoza exited his car, approached Appellant, and detected an

odor of alcohol about his person. He placed Appellant in the back of his squad

car, in the confined space of which the smell of alcohol on Appellant’s breath

was much stronger. Appellant admitted that he had been drinking; he said he

had consumed “maybe two” drinks. Officer Espinoza found a 750-milliliter

bottle of whiskey on the floor of Appellant’s truck, and the bottle was 80%

empty. Appellant’s speech was “a little bit slurred.”

       Officer Espinoza was not trained to administer field sobriety tests, so he

called for backup. Sergeant Weldon Norman responded to the call. Appellant

                                        2
told him “right off the bat that he wasn’t going to take any field sobriety tests”

before Sergeant Norman had even spoken to him.            Sergeant Norman then

administered the HGN test, and Appellant exhibited four out of six clues of

intoxication. Appellant’s eyes were “a little bloodshot.”

      Officer Espinoza arrested Appellant for driving while intoxicated.        He

transported Appellant to the jail and gave him the DIC 24 warning. Appellant

refused to provide a breath specimen.

      Appellant points out that there were no police video cameras in either

patrol vehicle; therefore, the only evidence of the events leading up to and

including the arrest is the officers’ testimony.     Also, a video recording of

Appellant and his actions at the city jail was admitted and published to the jury.

      The trial court instructed the jury, over Appellant’s objection, that “[y]ou

are instructed that you may consider the defendant’s breath test refusal as

evidence in this case.”    The jury convicted Appellant, and the trial court

sentenced him to ninety days’ confinement in the Tarrant County Jail and a fine

of $550, with the confinement portion of the sentence probated for twenty-four

months.

                     The trial court’s instruction was error

      In Hess v. State, this court held that it was error for a trial court to give

an instruction identical to the one in this case. 224 S.W.3d 511, 515 (Tex.

                                        3
App.—Fort Worth 2007, pet. ref’d). In Bartlett v. State, the Texas Court of

Criminal Appeals, citing our Hess opinion, recently explained,

      A judicial instruction that singles out a particular piece of evidence,
      but does not serve one of the legally authorized purposes set out
      above, risks impinging upon the “independence of the jury in its
      role as trier of the facts, a role long regarded by Texans as
      essential to the preservation of their liberties.” Even a seemingly
      neutral instruction may constitute an impermissible comment on the
      weight of the evidence because such an instruction singles out that
      particular piece of evidence for special attention. In the instant
      case, the question is whether the trial court’s seemingly neutral
      explanation of the law with respect to the admissibility of the
      refusal to take a breath test constituted such an impermissible
      comment.

270 S.W.3d 147, 151–52 (Tex. Crim. App. 2008) (citations omitted).

      The Bartlett court explained that there are three situations when a trial

court may properly comment on a specific item of evidence:

      First, the trial court may specifically instruct the jury when the law
      directs it to attach a certain degree of weight, or only a particular
      or limited significance, to a specific category or item of evidence,
      [such as accomplice testimony under article 38.14 of the code of
      criminal procedure or evidence admitted for a limited purpose under
      rule 105 of the Texas Rules of Evidence]. Second, the Legislature
      has expressly required the trial court to call particular attention to
      specific evidence in the jury charge when the law specifically
      identifies it as a predicate fact from which a jury may presume the
      existence of an ultimate or elemental fact. . . . Under section
      22.05(c) [of the Penal Code, the deadly-conduct statute],
      recklessness and danger, two separate elements of the offense of
      deadly conduct, may each be presumed if a person knowingly
      points a firearm at or in the direction of another. Third, the trial
      court may instruct the jury with respect to evidence that is
      admissible contingent upon certain predicate facts that it is up to

                                        4
      the jury to decide. For example, when the law specifically assigns
      to jurors the task of deciding whether certain evidence may be
      considered, as it does under Article 38.23 of the Code of Criminal
      Procedure, it is essential that jurors be told exactly what evidence
      is in question [before] they can[] pass upon its admissibility.

Id. at 151 (citations and quotation marks omitted).

      These are the only three circumstances under which the law authorizes

singling out particular evidence in the jury instruction. Instructing the jury about

the refusal to take a breath test does not fall within any of these three

exceptions. As the State candidly concedes, the trial court clearly erred in

instructing the jury that it could consider Appellant’s refusal to take a breath

test. We sustain Appellant’s first issue.

                             The error was harmless

      Having determined that there was error in the charge, we now must

decide if sufficient harm was caused by the error to require a reversal. See

Hutch v. State, 922 S.W.2d 166, 170–71 (Tex. Crim. App.1996).                   The

standard to determine whether sufficient harm resulted from the charging error

to require reversal depends upon whether the Appellant objected. See Olivas

v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (interpreting Almanza

v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)). When the

Appellant has made a timely objection at trial, as Appellant has in this case, an

appellate court will search only for “some harm.” Abdnor v. State, 871 S.W.2d

                                         5
726, 732 (Tex. Crim. App. 1994). In other words, a properly preserved error

will require reversal as long as the error is not harmless. Almanza, 686 S.W.2d

at 171.   In making this determination, “the actual degree of harm must be

assayed in light of the entire jury charge, the state of the evidence, including

the contested issues and weight of probative evidence, the argument of counsel

and any other relevant information revealed by the record of the trial as a

whole.”   Id.; see also Hutch, 922 S.W.2d at 171; Hess, 224 S.W.3d at

516–17.

      After reviewing the entire jury charge, the state of the evidence, and the

arguments of counsel, we hold that the instruction in this case, albeit improper,

was not harmful to Appellant. Absent the instruction in question, the charge

is wholly unexceptional.     It contains no other erroneous or questionable

sections, and the application paragraph properly instructs the jury to find

Appellant guilty if “you find from the evidence beyond a reasonable doubt that

in Tarrant County, Texas, on or about the 18th day of September, 2006, the

defendant, Rodney Dick Helm, Jr., did then and there operate a motor vehicle

in a public place while . . . intoxicated.” See Tex. Penal Code Ann. § 49.04

(Vernon 2003). The charge then states “[u]nless you do so find beyond a

reasonable doubt or if you have a reasonable doubt thereof, you will acquit the

defendant and say by your verdict, not guilty.”       The charge also properly

                                       6
defined intoxication to mean “not having the normal use of one’s mental or

physical faculties by reason of the introduction of alcohol into the body.” See

Tex. Penal Code Ann. § 49.01(2)(A). Assuming, as we must, that the jury

followed the instructions of the trial court, Colburn v. State, 966 S.W.2d 511,

520 (Tex. Crim. App. 1998), we cannot say that the erroneous instruction

reduced the State’s burden of proof in any way.

      The weight of the probative evidence militates against harm, too. See

Almanza, 686 S.W.2d at 171.         Appellant turned in front of an oncoming

vehicle, almost causing a wreck that was averted only because the other

vehicle slammed on its brakes. His breath smelled of alcohol, his eyes were

bloodshot, his speech was slurred, and he swayed when he walked. Officer

Espinoza saw him place something on the floor of his vehicle, which the jury

could have reasonably concluded was the mostly-empty whiskey bottle.

Appellant exhibited four clues of intoxication on the HGN test, and he refused

to take other field sobriety tests or submit a breath sample. Evidence favorable

to Appellant’s defense is the video made at the jail, in which he does not exhibit

obvious signs of intoxication, though he does sway back and forth. While this

is not a “slam-dunk, falling-down drunk” type of case, we cannot say, given the

weight of the evidence as a whole, that the court’s instruction harmed

Appellant. See Hess, 224 S.W.3d at 516.

                                        7
      Additionally, once the trial court admitted testimony regarding Appellant’s

refusal to take the breath test, both parties were free to argue that fact to the

jury. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000),

cert. denied, 532 U.S. 944 (2001); Hess, 224 S.W.3d at 516. Accordingly,

the State argued, “Don’t you think if he wasn’t intoxicated, he would have

[submitted to additional testing]?”    Appellant’s counsel pointed out that a

suspect does not have to submit to a breath test, but conceded that the jury

could consider the fact that he refused to submit. Therefore, the jury did not

need any judicial instruction to focus its attention on the refused test. See

Brown v. State, 122 S.W.3d 794, 803 (Tex. Crim. App. 2003); Hess, 224

S.W.3d at 517. Although the State referred to Appellant’s refusal three times

during its closing, the record demonstrates that the prosecution did not

emphasize the court’s instruction, focus the jury’s attention on that instruction,

or exploit the instruction by placing the weight of the trial court behind it. See

Hess, 224 S.W.3d at 511.       Accordingly, we hold that the instruction was

harmless under the facts of this case, and we overrule Appellant’s third issue.

We also overrule his second issue, in which he argues that the trial court erred

by failing to grant him a new trial based on the trial court’s erroneous charge

instruction.




                                        8
                                  Conclusion

      Having concluded that the trial court erred by specifically instructing the

jury that it could consider Appellant’s refusal to a breath test but further

concluding that the error was harmless under the evidence and circumstances

of this case, we affirm the trial court’s judgment.




                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: August 31, 2009




                                       9
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-430-CR


RODNEY DICK HELM, JR.                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

                                    ------------

                           DISSENTING OPINION

                                    ------------

      Because I believe that Appellant suffered some harm from the erroneous

jury instruction, I dissent.

      The majority accurately sets out the underlying facts of the case and

conscientiously analyzes the applicable law as applied to those facts. I must

disagree, however, with the majority’s interpretation of those facts.

      Under the Almanza analysis, “[i]f the error in the charge was the subject

of a timely objection in the trial court, then reversal is required if the error is
‘calculated to injure the rights of defendant,’ which means no more than that

there must be some harm to the accused from the error.” 1 Because Appellant

timely objected to the charge error, in determining whether some harm exists,

this court must review the entire jury charge, the evidence, the jury argument,

and “any other relevant information revealed by the record of the trial as a

whole.” 2

      Although it is true that Officer Espinoza said that Appellant made an

unlawful turn, he also testified that when Appellant turned left, the other truck

was a little “less than a block” away. If the approaching truck had to skid and

cause its brakes to screech, it could only be because it was approaching at an

excessive speed. Under ordinary circumstances, there is ample time to turn in

front of a vehicle that is a little “less than a block” away.

      Additionally, Officer Espinoza did not decide to pull Appellant over until

he saw Appellant pull into the parking lot of a strip club. Even then, Officer

Espinoza did not turn on his overhead lights, and, in fact, he did not do the

things an officer normally does when giving a ticket, nor did he give Appellant

a ticket. The officer instead placed Appellant in the cage in the back of his


      1
       … Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op.
on reh’g).
      2
      … Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).

                                        2
police unit. Although Officer Espinoza claimed that he saw Appellant sway as

he walked, there was no sway evident in the video taken at the police station

roughly an hour after the arrest. Although the officer said that he smelled

alcohol about Appellant’s person, it was not until he had placed Appellant in the

unit that he was able to determine that the odor of alcohol was “a lot stronger.”

      Without advising Appellant of any of the required warnings, the officer

began to question him. Leaving Appellant in the back seat of the unit, from

which Appellant could not exit, the officer searched Appellant’s truck, which

was lawfully parked in the parking lot. It was only then that the officer decided

that Appellant’s speech was “a little bit slurred.”

      There was no indication that the officer was concerned for his safety.

Rather, he was searching for evidence. As the Gant court pointed out, a person

secured in the back seat of a police unit cannot reach any weapon in his own

vehicle. An officer, therefore, is not justified in searching an empty vehicle on

the basis of the officer’s safety.3 At no time was Appellant allowed to return

to his truck.

      Appellant was seized and put into the cage of the police unit, with doors

that would not open from the inside, before the officer detected a strong odor

of alcohol, before he learned that Appellant had had two drinks, and before he


      3
          … Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009).

                                       3
unlawfully searched Appellant’s truck and found alcohol. There was no field

sobriety test. Neither officer had a functioning video camera in his unit. The

only evidence of Appellant’s conduct at the scene of the arrest was the

testimony of the police officers. Other than Officer Espinoza’s testimony that

Appellant turned improperly, there was no evidence of impaired driving.

      After Officer Norman arrived, he performed an HGN test that showed

some nystagmus, which Norman characterized as “clues of intoxication.”

Appellant’s eyes were also “a little bloodshot.” Appellant did not perform any

other field sobriety tests.

      Although there is no visual record of Appellant’s demeanor at the scene

of the arrest, there is a DVD of his demeanor in the police station. The DVD

reveals that Appellant’s speech was not slurred, he did not sway when he

walked, he was steady on his feet, he was able to follow the written and oral

warnings, and he repeatedly and clearly stated that he would not submit to any

testing until his attorney arrived. He repeatedly requested that his attorney be

present. Once a suspect has invoked his Fifth Amendment right to counsel,

police interrogation must cease until counsel has been provided or the suspect

himself reinitiates a dialogue. 4 Yet the officers did not stop their attempts to



      4
     … Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880,
1884–85 (1981).

                                       4
question Appellant and continued to ask him to perform field sobriety tests and

to submit a breath sample. I know of no rule of law that excepts DWI offenses

from the mandate of the Fifth Amendment to the Constitution of the United

States and Edwards v. Arizona. 5

      The jury, then, was presented with the fruit of an unlawful search, the

fruit of unlawful questioning, no objective evidence in the form of on-scene

videos, an HGN test, a video taken at the police station that indicated that

Appellant had the normal use of his mental and physical faculties, and a jury

instruction that singled out the breath-test refusal as evidence that the jury

could consider.

      In final argument, the prosecutors emphasized Appellant’s refusal of the

tests at the time of arrest. At one point, the prosecutor said,

      And he, again, refuses everything. And if you also notice on the
      tape, in the middle of nowhere, he says, “Okay, I’m good.” And
      then he’s offered a breath test, and he says No. He refuses
      everything.

And again,

      He refused everything. Don’t you think if he wasn’t intoxicated, he
      would have done something? No, he did absolutely nothing and
      the defense counsel wants to fault us for that and tell us that we
      don’t have enough evidence because the defendant refused
      everything.



      5
          … See id.; see also U.S. Const. amend V.

                                        5
And yet again, “He refuses everything. And what does he say? My attorney

told me not to do anything unless he was here.”

      In determining that the charge error was harmless, the majority relies, in

part, on improperly admitted evidence. Admittedly, defense counsel lodged not

a single objection during trial, except for the objection to the jury instruction.

While it is proper to rely on improperly admitted evidence in conducting a

sufficiency review,6 it is not proper to rely on improperly admitted evidence in

determining that the evidence of guilt was of such magnitude that the degree

of harm caused by the improper jury instruction was outweighed by the

quantum of the evidence of guilt. If that were the standard, cumulative error

could outweigh the harm caused by charge error, rendering the charge error

harmless in comparison to the other error in the case. Whether the charge error

is harmless relative to the other error in the case is not the standard for reversal

based on jury charge error.7

      The trial court’s instruction singling out the evidence of Appellant’s

refusal to submit to a breath test was an improper comment on the weight of

that evidence. The prosecutor’s argument magnified the injury that Appellant

suffered as a result of the trial court’s error.      Additionally, both the jury


      6
          … Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
      7
          … See Almanza, 686 S.W.2d at 171; see also Ovalle, 13 S.W.3d at 786.

                                         6
instruction and the State’s argument implicate Appellant’s invocation of his

right to counsel. Appellant’s refusal was conditioned on his attorney’s absence

and his reliance on his attorney’s instructions.     He voiced this explanation

repeatedly on the video. The evidence was at best equivocal on the legality of

the stop, the legality of the seizure, and Appellant’s guilt of the offense.

Appellant therefore suffered some harm from the improper jury charge. This

court should therefore sustain Appellant’s second issue, reverse the trial court’s

judgment, and remand the case to the trial court. Because the majority does

not, I must respectfully dissent.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: August 31, 2009




                                        7
