Hat tip to the TDCAA website for highlighting this recent COCA DWI opinion. In a remarkable decision the Court of Criminal Appeals actually upheld the rights of a DWI defendant. Unbelievable.
Facts- Roy Bob was charged with DWI. Roy Bob refused a breath test. The State wanted the jury charge to include language that refusing a breath test is evidence of guilt. The jury charge addressed the refusal and what the jury could think about said refusal.
Problem 1- Judges are not allowed to comment on the evidence. Juries decide what the facts are. You can’t tell the jury what the facts are, or even what facts are important, in the jury charge.
Problem 2- The prosecution in this case was flat wrong. The law creates no presumption that a breath test refusal is evidence of guilt. That may be what most prosecutors and cops think, but it’s not the law in Texas.
What is the law? Transportation Code section 724.061 allows evidence of a refusal to be introduced in a DWI trial. It doesn’t say what the refusal means.
Holding- The case is sent back for a “harm analysis”. Translation- sure this jury charge was illegal, but maybe we can still save this conviction by calling said error “harmless”.
From the opinion-
Section 724.061 of the Transportation Code does not establish a legally recognized presumption of consciousness of guilt that follows from the fact of refusal. We are aware of no other statutory language that expressly authorizes the jury to presume a consciousness of guilt from the refusal to take a breath test. In the absence of such a legal presumption, it is improper for the trial court to instruct the jury with respect to inferences that may or may not be drawn from evidentiary facts to ultimate or elemental facts. Because a presumption of consciousness of guilt from the refusal to submit to a breath test “is not an explicit legal tool for the jury[,]” (22) it was error for the trial court to have instructed the jury with respect to available inferences that may derive from that evidence.
Finally, the admission of the appellant’s refusal to take the breath test was not contingent on any other fact which a jury is charged by law to decide. Indeed, the law typically assigns to the judge, not the jury, the role of determining the admissibility of evidence. (23) Absent some express legal provision that does assign some role to the jury in the determination of what evidence may be considered, such as Article 38.22, Section 6, or Article 38.23(a) of the Code of Criminal Procedure, (24) to simply instruct the jury that certain evidence may be considered serves no legitimate purpose and needlessly calls its attention to that particular evidence to the derogation of all other evidence in the case. On its face, Section 724.061 of the Transportation Code does not involve the jury in the decision whether evidence of the refusal to take a breath test may be admitted for its consideration, and there was no call for the trial court in this case to give a jury instruction on that account.