ROY BOB BARTLETT v. THE STATE OF TEXAS (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1461-07

ROY BOB BARTLETT, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

ARANSAS COUNTY

Johnson, J., filed a concurring opinion.

C O N C U R R I N G O P I N I O N

While a trial court should use language in the jury charge that tracks the language of the statute, it should not, by language in the charge, appear to accentuate the importance of a piece of evidence. That is what happened here.

The first paragraph of the charge properly tracked the language of the statute as to the admission of the defendant's refusal to take a breath test. If the charge had stopped there, there would have been no issue for us to address, but the next two paragraphs drew attention to the refusal and were likely to have enhanced the apparent importance of it as evidence of guilt. The trial court attempted to be even-handed in its discussion, but the very fact of discussion of this piece of evidence and lack of discussion about other evidence raised a high probability that the discussion affected the weight given to that piece of evidence by the jury.

I join the opinion of the Court.

Filed: November 26, 2008

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