"[T]he jury in this case could have inferred from Huckabay's refusal to take a breath or blood test that Huckabay believed he was intoxicated. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App.1988) (noting that “it was not improper to simply argue that appellant refused [testing] because he was intoxicated”); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (finding that a jury may consider refusal to provide breath or blood samples as evidence of guilt); see also Tex. Transp. Code Ann. § 724.061 (West 1999) (“A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.”)."Having acknowledged that the evidence of the refusal was admissible, the defendant still argued that a jury instruction regarding the refusal was still an illegal highlighting of the evidence. The appeals court agreed:
A person's refusal to take a breath or blood test may be introduced into evidence at the person's trial. Tex. Transp. Code Ann. § 724.061. However, “a jury instruction informing the jury that it may consider evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of the evidence.” Bartlett v. State, 270 S.W.3d 147, 154 (Tex.Crim.App.2008); FN1 see Hess v. State, 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). While the instruction given to the jury did not misstate the law in this case, trial courts are not authorized to highlight the defendant's refusal to submit to alcohol testing from the other evidence in the case by instructing the jury to consider the refusal as evidence. Hess, 224 S.W.3d at 515. “By singling out that evidence, the trial court violate[s] Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and commit[s] a jury-charge error.” Bartlett, 270 S.W.3d at 154.; see Tex.Code Crim. Proc. Ann. § 36.14 (West 2007) (specifying that the judge shall not express any opinion as to the weight of the evidence in the charge of court), § 38.04 (West 1979) (specifying that the jury is the exclusive judge of the facts proved except where the law directs that a certain degree of weight is to be attached to a certain species of evidence), § 38.05 (West 1979) (recognizing that the judge shall not comment upon the weight of the evidence or make any remark calculated to convey to the jury his opinion of the case).Even though the introduction of a jury instruction regarding the refusal was an illegal highlighting of the evidence, and an error, the appeals court nevertheless found the error harmless and affirmed the conviction. It found that the following conduct by the State in their closing arguments did not overly emphasize the erroneous instruction:
In the State's closing argument, the prosecutor briefly reviewed each paragraph of the charge with the jury. With respect to paragraph three, which is the paragraph containing the instruction about Huckabay's refusal to test, the prosecutor read the instruction and then said: “That's here in your charge.” The prosecutor later argued that a finding of not guilty would reward drivers who drank and then refused to be tested, and that Huckabay refused to be tested because he knew he would not pass the tests. Finally, the prosecutor asked the jury not to award Huckabay for hiding the evidence by refusing to submit to the tests. However, the prosecutor did not mention paragraph three of the charge during this portion of the closing argument. In summary, the prosecutor referred to the trial court's instruction only once during closing argument. We conclude the record demonstrates that the prosecutor did not emphasize the court's instruction, focus the jury on the court's instruction, or exploit the instruction by placing the weight of the trial court behind it.
NOTE: The use of a pre-trial motion in limine, with supporting caselaw, to prevent this instruction from ever becoming an issue, would have been a helpful tactic. of course, it is also possible that defense counsel did so in this case and that the trial judge still committed error.
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