                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-12-00515-CR
                                  ________________________

                                FRANK NAVARRO, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 140th District Court
                                    Lubbock County, Texas
               Trial Court No. 2012-436251; Honorable Jim Bob Darnell, Presiding


                                        September 15, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Following a plea of not guilty, Appellant, Frank Navarro, was convicted by a jury

of driving while intoxicated, third or more, a third-degree felony.1         Punishment was

enhanced to that of a first degree felony by virtue of two prior felony convictions. 2 The

jury assessed a sentence of ninety-nine years confinement. By a sole issue, Appellant

      1
          TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2014).
      2
          TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
contends the court’s charge impermissibly shifted the burden of proof by requiring him

to disprove one of the prior driving while intoxicated offenses used to enhance this

particular offense to a felony offense.                 While the State concedes the particular

instruction was erroneous, because we find the error was not egregious, we affirm.


                                               BACKGROUND


      On the afternoon of March 19, 2012, Homeland Security Investigation agents

driving in an unmarked truck from Idalou to Lubbock observed a Ford Explorer coming

up on them at a high rate of speed.                 They took evasive action and moved to the

shoulder of the road to allow the vehicle to pass. At that moment, one of the agents

observed the driver drinking from a gold-colored can.3 They followed the driver and

observed him commit several traffic violations, run over a median and avoid multiple

near-miss collisions.          They called 911 and reported this activity to the Texas

Department of Public Safety. They then activated their vehicle’s lights and sirens to

follow the vehicle and alert other drivers. The vehicle finally stopped at an apartment

complex where Appellant exited the vehicle and urinated in the parking lot. When

Appellant returned to his vehicle as if to drive away the agents positioned their vehicle

so as to block him in. Appellant was then detained and handcuffed until local police

officers could respond.


      Officer Joshua Franco responded to the call. Another officer was already at the

scene and had taken custody of Appellant. After Appellant was identified, he refused to

take standard field sobriety tests. After a determination that Appellant was intoxicated,

      3
          The can was later identified as a Miller High Life tall boy.


                                                       2
Officer Franco asked for a specimen and Appellant again refused. When a criminal

history check revealed two or more prior convictions for driving while intoxicated,

Appellant was transported to a local hospital for a mandatory blood draw.4 The blood

was delivered by Officer Franco to the Texas Department of Public Safety laboratory for

testing. Results showed Appellant’s blood alcohol concentration was 0.274 grams of

alcohol per 100 milliliters.5


        Appellant was indicted for driving while intoxicated, enhanced to a felony as the

result of two prior driving while intoxicated convictions. The range of punishment was

also enhanced by two prior felony convictions. Following a finding of guilt and the

assessment of sentence, Appellant appealed. By a sole issue, Appellant alleges he

was egregiously harmed by error in the court’s charge.                       He asserts the charge

impermissibly shifted the burden of proof to him to prove beyond a reasonable doubt

that he had not been previously convicted of operating a motor vehicle in a public place

while intoxicated. While the State contends that the charge did not shift the burden of

proof, it concedes the charge is erroneous but argues the error was harmless. We

agree the charge is erroneous but conclude the error did not cause Appellant egregious

harm.


                                                ANALYSIS


        After defining the elements of the offense of driving while intoxicated and the

three grades of the offense depending on the number of prior driving while intoxicated

convictions, the court’s charge contains three separate application paragraphs: (1)
        4
            See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).
        5
            The legal limit in Texas is .08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).

                                                     3
Paragraph Five pertinent to felony driving while intoxicated (i.e., two prior convictions),

(2) Paragraph Six pertinent to Class A driving while intoxicated (i.e., one prior

conviction), and (3) Paragraph Seven pertinent to Class B driving while intoxicated (i.e.,

no prior conviction).


          Paragraph seven of the court’s charge instructed the jury as follows:


          if you find from the evidence beyond a reasonable doubt that on or about
          March 29, 2012 . . . the defendant did then and there operate a motor
          vehicle in a public place while intoxicated, but you further find from the
          evidence beyond a reasonable doubt that the defendant, previously
          thereto, had not been convicted of the offense of operating a motor vehicle
          in a public place, while intoxicated, then you will find the defendant guilty
          of the offense of unlawfully operating a motor vehicle in a public place
          while intoxicated . . . .

(Emphasis added). Appellant asserts this instruction shifted the burden of proof to him

to prove beyond a reasonable doubt he had not been previously convicted of driving

while intoxicated before the jury could consider the lesser-included Class B

misdemeanor offense.         Appellant did not object to the charge.      Given the State’s

concession of error, we proceed to conduct a harm analysis for egregious error

pursuant to Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. on

reh'g).


                   STANDARD OF REVIEW—UNOBJECTED-TO CHARGE ERROR


          Unobjected-to charge error is reversible if it is so egregious and creates such

harm that it deprives the accused of a "fair and impartial trial." See Almanza, 686

S.W.2d at 172. See also Trejo v. State, 280 S.W.3d 358, 261 (Tex. Crim. App. 2009).

Errors that result in egregious harm are those that affect "the very basis of the case,”


                                               4
“deprive the accused of a valuable right,” or “vitally affect his defensive theory." See

Almanza, 686 S.W.2d at 172. See also Sanchez v. State, 209 S.W.3d 117, 121 (Tex.

Crim. App. 2006).


      When reviewing harm resulting from charge error, an appellate court must

determine harm in light of four factors: (1) the entire jury charge, (2) the state of the

evidence, including contested issues and the weight of probative evidence, (3) the

arguments of counsel, and (4) any other relevant information revealed by the record of

the trial as a whole. See Almanza, 686 S.W.2d at 174. See also Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). Additionally, there is no burden of proof or

persuasion in a harm analysis conducted under Almanza.


      (1) The Entire Jury Charge


      The trial court is required to provide the jury with “a written charge distinctly

setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). Because the charge is the instrument by which the jury convicts, it must

contain an accurate statement of the law and must set out all the essential elements of

the offense. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).


      The court’s charge in the guilt/innocence phase is lengthy and, as previously

stated, includes instructions on different levels of driving while intoxicated—a Class B

misdemeanor, a Class A misdemeanor and a third degree felony.6 The Class A and

Class B offenses are presented as lesser-included offenses, only applicable if the jury is

not unanimously convinced of the greater offense.

      6
          TEX. PENAL CODE ANN. §§ 49.04(b), 49.09(a), (b)(2).

                                                    5
      Here, the error occurs in paragraph seven, the application paragraph for a Class

B misdemeanor, which the jury would have reached only if it had failed to reach a

unanimous verdict on the original charge of felony driving while intoxicated.

Furthermore, paragraph seven notwithstanding, paragraph twelve instructs the jury to

consider the charge as a whole and paragraph seventeen instructs the jury that

Appellant does not have to prove his innocence or produce any evidence at all, and the

State has the burden of proving his guilt by proving each and every element beyond a

reasonable doubt. Absent evidence to the contrary, we presume the jury understood

and followed the court’s charge. Gelinas v. State, 398 S.W.3d 703, 706 (Tex. Crim.

App. 2013). While the inadvertent inclusion of the word “not” certainly could have been

misleading, we find that a reading the charge in its entirety weighs against the likelihood

of confusion and a finding of egregious harm.


      (2) The State of the Evidence


      Driving while intoxicated is a strict liability crime—it does not require a specific

mental state, only a person operating a motor vehicle on a public roadway while

intoxicated. See Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim. App. 2013) (citing

Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975)).               Driving while

intoxicated may be supported by circumstantial evidence if there is a temporal link

between an accused’s intoxication and his driving. See Kuciemba v. State, 310 S.W.3d

460, 462 (Tex. Crim. App. 2010). See also Smithhart v. State, 503 S.W.2d 283, 285

(Tex. Crim. App. 1973).




                                            6
      Appellant contested the charge against him. He entered a plea of not guilty to the

primary offense and pleas of not true to the two enhancement allegations.7 The State

presented evidence of Appellant’s erratic and dangerous driving pattern as witnessed

by the Homeland Security Investigation agent. That agent was previously employed as

a Florida Highway Patrol Officer and, as such, had prior experience responding to

driving while intoxicated calls. Testimony also established Appellant smelled of alcohol

and had numerous containers of beer in his vehicle.                   A chemist for the Texas

Department of Public Safety testified that Appellant’s blood alcohol content was 0.274,

more than three times the legal limit in Texas.


      Furthermore, of significance to the alleged error, an investigator for the

prosecution with expertise in fingerprints linked Appellant to two prior driving while

intoxicated convictions through certified copies of judgments which were admitted into

evidence. The probative evidence of the primary offense and the two prior driving while

intoxicated convictions weighs heavily against a finding of egregious harm.


       (3) The Arguments of Counsel


       During voir dire, the State acknowledged its burden to prove all elements of the

indicted offense, including the two prior convictions, beyond a reasonable doubt. The

prosecutor stated that the burden never shifts to the defendant.                 Defense counsel

likewise stated the burden was on the State to prove all elements beyond a reasonable

doubt. During closing arguments, the prosecutor explained the State was required to

prove the contents of paragraph five of the charge, which instructed the jury on the

       7
          During the punishment phase, Appellant entered pleas of true to the enhancement allegations
and instructed defense counsel not to object or contest other judgments when offered into evidence.

                                                 7
primary offense with two prior driving while intoxicated convictions. The prosecutor

further explained that if the jury rejected the two priors, it could then consider the lesser-

included offenses, including the possibility that Appellant had no priors.          Both the

prosecutor and defense counsel reiterated during closing arguments that the burden of

proof was always on the State to prove every element of the offense beyond a

reasonable doubt. Accordingly, the arguments of counsel weigh against a finding of

egregious harm.


       (4) Any Other Relevant Information


       Prior to voir dire, the trial court instructed the jury that the State was required to

prove the driving while intoxicated offense alleged, as well as the two prior driving while

intoxicated convictions. The court continued that Appellant did not have to prove his

innocence or produce any evidence at all. The jury did not ask any questions during

deliberations and those deliberations were not lengthy. There is no indication of any

confusion by the jury or even consideration of the lesser-included offenses. The jury’s

rejection of the lesser-included offenses rendered the erroneous instruction in

paragraph seven harmless.        The State established beyond a reasonable doubt the

elements of the primary offense of driving while intoxicated and the two prior driving

while intoxicated convictions.    As such, this factor also weighs against a finding of

egregious error.


       In balancing the four Almanza factors, we conclude the error in paragraph seven

of the charge did not affect the very basis of Appellant’s case, deprive him of a valuable




                                              8
right, or vitally affect a defensive theory. Appellant has not demonstrated the lack of a

fair and impartial trial resulting in egregious harm. His sole issue is overruled.


                                        CONCLUSION


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




                                              9
