                             NUMBER 13-09-00024-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MANUEL SOTELO,                                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 28th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez

       A jury found appellant, Manuel Sotelo, guilty of the offense of driving while

intoxicated (“DWI”), a third-degree felony in this case because of prior convictions for the

same offense. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), § 49.09 (Vernon Supp.

2009). The trial court assessed punishment at three years’ imprisonment. By a single

issue, Sotelo contends that the trial court erred in overruling his objection to the State’s
allegedly improper jury argument. We affirm.

                                      I. BACKGROUND

       Around 11:23 p.m. on March 22, 2008, Port Aransas police officer Terry Syler

encountered a Chevy Impala blocking Mustang Island Beach’s flow of vehicular spring

break traffic. Upon closer inspection, Officer Syler realized that the Impala had been

involved in a minor accident with a nearby Dodge truck. The Impala’s front wheels were

buried in the sand and one of the wheels appeared broken; the driver, later identified by

Officer Syler as Sotelo, attempted to free the Impala by spinning its tires. Officer Syler

testified that he approached the driver’s side of the Impala and asked Sotelo to exit.

Officer Syler suspected that Sotelo was intoxicated because Sotelo’s breath smelled of

alcohol, he was “unsteady on his feet,” and his speech was slurred.

       Texas Department of Public Safety Trooper Eloy Vasquez arrived on the scene to

assist Officer Syler. Trooper Vasquez testified that, in addition to the signs of intoxication

noted by Officer Syler, Sotelo had “watery eyes” and kept repeating himself. Trooper

Vasquez testified that Sotelo responded “Yes” when asked if “he had been drinking a lot.”

Due to the large number of people and traffic on the beach, Trooper Vasquez transported

Sotelo to the parking lot of the Port Aransas Police Department to conduct sobriety testing.

Trooper Vasquez testified that he conducted the horizontal gaze nystagmus test, the “walk

and turn” test, and the “one leg stand” test and that Sotelo failed each of the tests.

Although Sotelo refused to take a breath test, Trooper Vasquez testified that in his opinion,

Sotelo “had lost his mental and physical faculties. He was intoxicated.”

       Sotelo testified that he arrived at the beach around 8:30 p.m., intending to meet

several friends. Sotelo parked his mother’s Impala and introduced himself to a few people

at a nearby bonfire. Sotelo testified that he offered to drive a man home a few hours later;
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however, on cross-examination, Sotelo testified that he did not know the man’s name.

Sotelo admitted that he had consumed two beers that night and had two prior DWI

convictions. According to Sotelo, because he had seen many police officers on the beach,

he allowed the unidentified man to drive the Impala. Sotelo stated that he rode in the front

passenger seat as the man drove the Impala down the beach. At some point, a Dodge

truck backed into the Impala. Sotelo testified that he got out of the Impala and looked for

a cell phone to call the police, and the man who had been driving the Impala fled. Sotelo

insisted that no one was in the driver’s seat when the police arrived.            On cross-

examination, Sotelo stated that he had not told the officers that someone else had been

driving the Impala at the time of the accident because “he was more concerned about [his]

vehicle.”

       The jury found Sotelo guilty of third-degree felony driving while intoxicated, and the

trial court assessed punishment at three years’ imprisonment. See TEX . PENAL CODE ANN .

§§ 49.04, 49.09. This appeal ensued.

                                     II. JURY ARGUMENT

       In his sole issue, Sotelo contends that the State’s comments on his refusal to submit

to a breath test were improper, and the trial court erred by failing to sustain his objections

to those comments.

       Closing arguments began with defense counsel’s argument that the State had not

met its burden of proof. Defense counsel argued that evidence of the three field sobriety

tests conducted was unreliable and that Sotelo had the right to refuse to submit to a breath

test. During the State’s closing argument, the following exchange occurred:

       [State]:             . . . And then [Sotelo] was offered the opportunity to
                            provide a breath sample. You know why? Because we
                            are always going to hear the argument, oh, these field
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                           sobriety tests are too hard. No one can do it. So you
                           know what, he had his chance right there with his two
                           beers that he drank, to blow and prove to this Court and
                           to you all—

      [Defense Counsel]: Objection, Your Honor. I just want to make sure the jury
                         doesn’t think the burden is being shifted, and I’m going
                         to object to this part of the argument that my client has
                         any burden to prove anything. I think she’s mentioned
                         that.

      [State]:             Your Honor, the refusal to perform the breath
                           sample—it has been used in court.

      The Court:           Overruled.

      [State]:             He had the opportunity to blow and show you that he
                           was below .08, and he refused. I know we talked about
                           this in voir dire about how that would take you to that
                           one level. And I wish I could give that to you, but it is
                           not up to me to give it. There was one person in this
                           room who could have given that evidence to you, and
                           he refused.

      [Defense Counsel]: I’m going to object again. That’s burden shifting, Your
                         Honor. It’s inappropriate.

      [State]:             Your Honor, it is the same response. It can be used
                           against him in Court.

      The Court:           The evidence of his refusal is on the record.

      [State]:             So again, that can be used against him. . . .

A.    Was the State’s Jury Argument Improper?

      We review a trial court’s ruling on an objection to a jury argument under an abuse

of discretion standard. See York v. State, 258 S.W.3d 712, 717 (Tex. App.–Waco 2008,

pet. ref’d). “[P]roper jury argument generally falls within one of four general areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to

argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State, 270

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S.W.3d 564, 570 (Tex. Crim. App. 2008). To determine whether a party’s argument

properly falls within one of these areas, we must consider the argument in light of the

record as a whole. See Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.–El Paso 2001,

pet. ref’d).

       The State contends that its argument was proper because it was an answer to

defense counsel’s arguments and “the State may comment on appellant’s failure to

produce witnesses and evidence in his favor, so long as the remark does not fault the

defendant for exercising his right not to testify.” The State’s argument on appeal begins

with a line of cases that address whether a statement is an improper comment on a

defendant’s failure to testify. See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App.

2000); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Livingston v. State,

739 S.W.2d 311, 338 (Tex. Crim. App. 1987); Caron v. State, 162 S.W.3d 614, 618 (Tex.

App.–Houston [14th Dist.] 2005, no pet.). However, Sotelo does not contend that the

State’s argument was a comment on his failure to testify; instead, he argues that the

State’s argument improperly shifted the burden of proof to him. Accordingly, we focus our

analysis on whether the State attempted to shift its burden to Sotelo.

       Section 724.061 of the Texas Transportation Code provides that a person’s refusal

to submit to a breath test may be introduced into evidence. TEX . TRANS . CODE ANN . §

724.061 (Vernon 1999). Because evidence of Sotelo’s failure to take a breath test was in

evidence, the State could properly comment on his refusal in closing argument. See

Emigh v. State, 916 S.W.2d 71, 73 (Tex. App.–Houston [1st Dist.] 1996, no pet.); Jordan

v. State, 897 S.W.2d 909, 912-13 (Tex. App.–Fort Worth 1995, no pet.). However, the

issue before us is not whether the State erred by commenting on Sotelo’s refusal to take

a breath test, but whether the State’s comment improperly shifted the burden of proof to

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Sotelo. We conclude that the State’s argument was improper.

       Although evidence of Sotelo’s refusal to submit to a breath test was properly

introduced at trial, the State’s comments went beyond merely summarizing the state of the

evidence. The record indicates that the State’s comments began as an answer to defense

counsel’s argument that the sobriety tests were unreliable; however, the State’s argument

became improper when the State suggested that Sotelo had the burden “to blow and

prove” his innocence. By arguing that Sotelo had a chance “to prove” his innocence, the

State attempted to shift its burden to Sotelo. See Bartlett v. State, 270 S.W.3d 147, 153

(Tex. Crim. App. 2008) (concluding that although evidence of a person’s refusal to submit

to a breath test may be introduced at trial because it tends to show a consciousness of

guilt, a jury is not authorized “to presume a consciousness of guilt from the refusal to take

a breath test”). Accordingly, we conclude that the State’s argument was improper and the

trial court erred in overruling Sotelo’s objection. See Abbott v. State, 196 S.W.3d 334, 343-

44 (Tex. App.–Waco 2006, pet. ref’d) (concluding that jury argument was improper where

the State’s closing argument misstated the law on the burden of proof).

B.     Did the Error Contribute to Sotelo’s Conviction?

       Because the trial court erred in overruling Sotelo’s objection, we must determine

whether reversal is required. See TEX . R. APP. P. 44.2. “The law on the burden of proof

is constitutional: The Due Process Clause of the Fourteenth Amendment to the United

States Constitution requires that every state criminal conviction be supported by evidence

that a rational factfinder could find beyond a reasonable doubt.” See Abbott, 196 S.W.3d

at 344. Moreover, the presumption of innocence “arises from the constitutional guarantee

of a fair and impartial trial.” Id. (citing U.S. CONST . amend. XIV). Because the error is

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constitutional, we must reverse the trial court’s judgment unless we determine beyond a

reasonable doubt that the error did not contribute to Sotelo’s conviction. See TEX . R. APP.

P. 44.2(a); Abbott, 196 S.W.3d at 344-45 (conducting a harm analysis under Texas Rule

of Appellate Procedure 44.2(a) after determining that the State’s closing argument was

improper where it misstated the law on the burden of proof).

       In conducting a harm analysis under rule 44.2(a), our emphasis is not on “the

propriety of the outcome of the trial.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.

2007). Instead, we consider “the likelihood that the constitutional error was actually a

contributing factor in the jury’s deliberations in arriving at that verdict.” Id. In reaching this

decision, we consider: (1) the source and nature of the error; (2) the extent to which the

State emphasized the error; (3) the probable collateral implications of the error; (4) the

weight a juror would probably place upon the error; and (5) whether declaring the error

harmless would encourage the State to repeat it with impunity. Wall v. State, 286 S.W.3d

372, 374 (Tex. App.–Corpus Christi 2008, pet. ref’d) (citing Harris v. State, 790 S.W.2d

568, 587 (Tex. Crim. App. 1989)); Abbott, 196 S.W.3d at 344.

       Although the trial court erred by overruling Sotelo’s objection, the source and nature

of the error was the State’s improper jury argument attempting to shift the burden of proof

to Sotelo. Turning to the second through fourth factors, we note that aside from the above

cited argument, the jury was properly instructed on the burden of proof throughout the trial.

During voir dire, the jury heard from defense counsel that the State had the burden to

prove that Sotelo was guilty of the offense of driving while intoxicated. Defense counsel

emphasized that Sotelo “has no burden at all to do anything.” When trial began, the

State’s opening argument informed the jury that the State had the burden to prove that


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Sotelo committed the charged offense beyond a reasonable doubt. Defense counsel’s

opening statement reminded the jury that “the State always has the burden” and that “the

burden never shifts to my client.”

       Before closing arguments, the trial court charged the jury, in pertinent part, as

follows:

              Unless you so find beyond a reasonable doubt, or if you have a
       reasonable doubt thereof, you will acquit the defendant of the felony offense
       alleged in the indictment.

              ....

               All persons are presumed to be innocent and no person may be
       convicted of an offense unless each element of the offense is proved beyond
       a reasonable doubt. The fact that a person has been arrested, confined, or
       indicted for, or otherwise charged with, the offense gives rise to no inference
       of guilt at his trial. The law does not require a defendant to prove his
       innocence or produce any evidence at all. The presumption of innocence
       alone is sufficient to acquit the defendant, unless the jurors are satisfied
       beyond a reasonable doubt of the defendant’s guilt after careful and impartial
       consideration of all the evidence in the case.

              The prosecution has the burden of proving the defendant guilty and
       it must do so by proving each and every element of the offense charged by
       reasonable doubt and if it fails to do so, you must acquit the defendant.

              ....

             In deciding the question of guilt or innocence, the jury shall be
       governed by the law as it is stated in the charge. . . .

The charge was followed by defense counsel’s closing argument emphasizing the State’s

burden. After improperly attempting to shift the burden of proof to Sotelo via the previously

discussed closing argument, the State concluded its jury argument by stating that the State

bears the burden of proof and emphasizing that it had met its burden.

       Sotelo does not contend that the evidence is legally or factually insufficient to

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support his conviction. Moreover, the error did not occur until the State’s closing argument

in the guilt-innocence phase of trial. The evidence does not suggest that the State

emphasized its error or that the jury would place undue weight on the State’s improper

argument. Abbott, 196 S.W.3d at 344-45. Moreover, the jury was properly instructed on

the correct burden of proof numerous times throughout the trial. Because the jury is

presumed to follow these instructions, the impact of the State’s improper argument was

likely negated to some extent. See Crocker v. State, 248 S.W.3d 299, 306-07 (Tex.

App.–Houston [1st Dist.] 2007, pet. ref’d).

        Finally, we must determine whether declaring the State’s error harmless would

encourage the State to repeat it with impunity. See Abbott, 196 S.W.3d at 344. The

defense’s closing argument questioned the reliability of the three sobriety tests given and

the veracity of the officer who conducted them. As previously discussed, the State’s

argument, although improper, began as a response to defense counsel’s arguments.

Although the State‘s argument went beyond merely responding to defense counsel’s

assertions, there is nothing in the record to suggest that the State intended to shift its

burden to Sotelo—Sotelo’s refusal to take the breath test was not emphasized during the

trial. Morevoer, soon after its improper argument, the State referred to the correct burden

of proof, and the jury was instructed as to the correct standard numerous times throughout

the trial.

        After due consideration of the each of the aforementioned factors, we are certain

that the State’s error did not contribute to Sotelo’s conviction. Accordingly, the complained-

of error was harmless. See TEX . R. APP. P. 44.2(a); Abbott, 196 S.W.3d at 345. Sotelo’s

sole issue is overruled.


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                                    III. CONCLUSION

      Having overruled Sotelo’s sole issue, we affirm the trial court’s judgment.

                                                ________________________
                                                ROGELIO VALDEZ
                                                Chief Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed
the 10th day of December, 2009.




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