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                                  MEMORANDUM OPINION

                                          No. 04-08-00679-CR

                                             Daniel LEIJA,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                        From the County Court at Law No. 1, Bexar County, Texas
                                        Trial Court No. 968937
                                 Honorable Al Alonso, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: February 11, 2009

AFFIRMED

           Daniel Leija was convicted by a jury for the offense of driving while intoxicated. The trial

court’s punishment included 180 days in the county jail, probated and suspended for a term of two

years, and a $2,000 fine. Leija’s only issue on appeal is that the trial court’s jury instruction, noting

that the jury could consider Leija’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 agree. However, because
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Leija failed to object to the instruction during the trial and the record fails to show egregious harm,

we affirm the judgment of the trial court.

                           FACTUAL AND PROCEDURAL BACKGROUND

       San Antonio police officer Gerald Anthony Garcia1 (“Officer Gerald”) was on his way home

from work late one night when he observed a vehicle approaching him from behind at a high rate of

speed. Officer Gerald’s department motorcycle was equipped with a radar unit which indicated the

car was traveling at 85 miles per hour. As the vehicle passed Officer Gerald, the vehicle moved over

and “cut into” Officer Gerald’s lane. The officer testified that he almost dropped his bike because

he had to swerve out of the vehicle’s way, and that he believed if he was not such an experienced

motorcycle driver, he would have been killed that night due to the evasive action he was forced to

take. The officer immediately turned on his lights, but the vehicle did not respond. Officer Gerald

caught up with the driver, Daniel Leija, whom he observed to be dazed and confused. The officer

signaled the driver to pull over, which he did. As he approached the vehicle’s open window, Officer

Gerald observed a strong smell of intoxicants coming from Leija. Because Officer Gerald was off-

duty and therefore unable to write traffic citations, he notified dispatch to send another officer to

handle the call.

       San Antonio police officer John Garcia (“Officer John”) responded to the dispatch. He

approached the vehicle and shined a flashlight into the back seat of the car, where he observed a

brown bag with a clear bottle partially underneath the passenger front seat. Officer John observed


       1
          … Because two of the officers involved in this incident have the surname Garcia, we will
refer to them by their first names.

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that Leija smelled of intoxicants and had glassy, bloodshot eyes. Officer John conducted two field

sobriety tests on Leija, both of which he failed. Officer John arrested Leija and transported him to

the police station. Leija refused to give a breath or blood sample, or to perform sobriety tests in the

video room.

        In accordance with section 724.061 of the Texas Transportation Code, the trial court admitted

into evidence Leija’s refusal to submit to the breath test. Additionally, the court’s jury charge stated:

“You are instructed that you may consider the defendant’s refusal to submit to a breath test as

evidence in this case.” Leija did not object to the jury charge. He now appeals his conviction.

                                    IMPROPER JURY INSTRUCTION

        Leija 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 his failure to submit to a breath test, as it is an

impermissible comment on the weight of the evidence. See TEX . TRANSP . CODE ANN . § 724.061

(Vernon 1999). Leija points to a recent opinion by this court, Vargas v. State, No. 04-07-00618-CR,

2008 WL 3926390 (Tex. App.—San Antonio Aug. 27, 2008, no pet.), in which we held that the

inclusion of such an instruction amounted to an impermissible comment on the weight of the

evidence. Id. at *2. The State concedes that the jury instruction submitted to the jury was improper.

Because the jury was improperly charged by the court, we must address whether the error resulted

in egregious harm to Leija.




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                                          HARM ANALYSIS

       Leija did not object to the jury instruction at trial. Absent an objection, reversible error exists

only if the record shows 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 charge error in the absence of an objection to jury

charge). Egregious harm arises if the error is so severe that it deprived the accused of a fair and

impartial trial. Id. In determining whether egregious harms exists, we consider the following

factors: (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.

       In support of his claim that the jury instruction resulted in egregious harm, Leija argues that

the placement of the instruction, in a paragraph by itself and sandwiched between allegedly

conflicting instructions about inadmissible evidence, likely confused the jurors. He also contends

the impact of the erroneous instruction was all the more harmful in light of the State’s evidence,

which consisted solely of officers’ testimony, and claims the instruction bolstered the credibility of

Officer Gerald and Officer John. Leija also challenges the testimony of Officer Johnny Ruiz, who

told the jury that while no one is forced to submit to further field sobriety tests on camera, had Leija

chosen to he could have proven he was not intoxicated—intimating to the jury that because of his

refusal to take the test, he must have been intoxicated. Leija also contends testimony concerning his

interaction with Officer Ruiz should not have been allowed, as it was post-arrest, and testimony

commenting upon post-arrest silence is improper. Finally, Leija argues that on several occasions the

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State elicited answers in such a manner that they shifted the burden to Leija, and made comments

during objections or while addressing the trial court that shifted the burden of proof to Leija.

        These specific arguments raised by Leija on appeal were never presented to the trial court.

Because these issues were not preserved, they cannot be considered as discrete points of error. See

TEX . R. APP . P. 33.1(a) (requiring “a timely, specific objection and a ruling by the trial court” to

preserve a complaint for appellate review). Taken in the context of Leija’s jury charge challenge,

none of these arguments persuade us that egregious harm is present in this case. During the course

of the trial, the jury was presented with the following evidence upon which it could have assessed

guilt: (1) Leija cut off Officer Gerald on his motorcycle, almost causing an accident; (2) Leija did

not immediately pull over when he observed Officer Gerald’s lights; (3) both officers observed a

strong smell of intoxicants coming from Leija; (4) Leija appeared dazed and confused; (5) Leija had

glassy, bloodshot eyes; (6) an open bottle of rum was found in Leija’s car; (7) Leija failed two field

sobriety tests; and (8) Leija refused to submit to the requested breath test and videoed sobriety tests.

Based on this evidence, the jury could have found Leija guilty beyond a reasonable doubt.

        Leija also asserts that the State improperly argued about his failure to submit to the breath

test during its closing argument. However, 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 Leija’s failure to submit to the breath test,

including the deduction that his reason for refusing to take the test was that Leija was intoxicated,

was proper jury argument. See id.

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       Absent any evidence to the contrary, the jury could have assessed Leija’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). Moreover, the record lacks any evidence that the error was either

calculated to injure the rights of the defendant or deprive the defendant of a fair trial. See Almanza,

686 S.W.2d at 171; Hess v. State, 224 S.W.3d 511, 515 (Tex. App.—Fort Worth 2007, pet. ref’d).

Thus, Leija failed to prove egregious harm, and his issue is overruled.

                                            CONCLUSION

       Leija has failed to prove the State’s erroneous jury instruction resulted in egregious harm.

Accordingly, we affirm the judgment of the trial court.




                                                        Catherine Stone, Chief Justice

Do Not Publish




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