In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-12-00515-CR 

________________________

FRANK NAVARRO, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 140th District Court 

Lubbock County, Texas 

Trial Court No. 2012-436251; Honorable Jim Bob Darnell, Presiding 

 

September 15, 2014 

 

MEMORANDUM OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

Following a plea of not guilty, Appellant, Frank Navarro, was convicted by a jury 

of driving while intoxicated, third or more, a third-degree felony.1 Punishment was 

enhanced to that of a first degree felony by virtue of two prior felony convictions.2 The 

jury assessed a sentence of ninety-nine years confinement. By a sole issue, Appellant

 

1

TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2014). 

2

 TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). 
2

contends the court’s charge impermissibly shifted the burden of proof by requiring him 

to disprove one of the prior driving while intoxicated offenses used to enhance this 

particular offense to a felony offense. While the State concedes the particular 

instruction was erroneous, because we find the error was not egregious, we affirm.

BACKGROUND

On the afternoon of March 19, 2012, Homeland Security Investigation agents 

driving in an unmarked truck from Idalou to Lubbock observed a Ford Explorer coming 

up on them at a high rate of speed. They took evasive action and moved to the 

shoulder of the road to allow the vehicle to pass. At that moment, one of the agents

observed the driver drinking from a gold-colored can.

3

 They followed the driver and 

observed him commit several traffic violations, run over a median and avoid multiple 

near-miss collisions. They called 911 and reported this activity to the Texas 

Department of Public Safety. They then activated their vehicle’s lights and sirens to 

follow the vehicle and alert other drivers. The vehicle finally stopped at an apartment

complex where Appellant exited the vehicle and urinated in the parking lot. When 

Appellant returned to his vehicle as if to drive away the agents positioned their vehicle 

so as to block him in. Appellant was then detained and handcuffed until local police 

officers could respond. 

Officer Joshua Franco responded to the call. Another officer was already at the 

scene and had taken custody of Appellant. After Appellant was identified, he refused to 

take standard field sobriety tests. After a determination that Appellant was intoxicated, 

 

3

The can was later identified as a Miller High Life tall boy.
3

Officer Franco asked for a specimen and Appellant again refused. When a criminal 

history check revealed two or more prior convictions for driving while intoxicated,

Appellant was transported to a local hospital for a mandatory blood draw.4 The blood 

was delivered by Officer Franco to the Texas Department of Public Safety laboratory for 

testing. Results showed Appellant’s blood alcohol concentration was 0.274 grams of 

alcohol per 100 milliliters.5

Appellant was indicted for driving while intoxicated, enhanced to a felony as the 

result of two prior driving while intoxicated convictions. The range of punishment was 

also enhanced by two prior felony convictions. Following a finding of guilt and the 

assessment of sentence, Appellant appealed. By a sole issue, Appellant alleges he 

was egregiously harmed by error in the court’s charge. He asserts the charge 

impermissibly shifted the burden of proof to him to prove beyond a reasonable doubt 

that he had not been previously convicted of operating a motor vehicle in a public place 

while intoxicated. While the State contends that the charge did not shift the burden of 

proof, it concedes the charge is erroneous but argues the error was harmless. We 

agree the charge is erroneous but conclude the error did not cause Appellant egregious 

harm.

ANALYSIS

After defining the elements of the offense of driving while intoxicated and the 

three grades of the offense depending on the number of prior driving while intoxicated 

convictions, the court’s charge contains three separate application paragraphs: (1) 

 

4

See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

5

The legal limit in Texas is .08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).
4

Paragraph Five pertinent to felony driving while intoxicated (i.e., two prior convictions), 

(2) Paragraph Six pertinent to Class A driving while intoxicated (i.e., one prior 

conviction), and (3) Paragraph Seven pertinent to Class B driving while intoxicated (i.e.,

no prior conviction).

Paragraph seven of the court’s charge instructed the jury as follows: 

if you find from the evidence beyond a reasonable doubt that on or about 

March 29, 2012 . . . the defendant did then and there operate a motor 

vehicle in a public place while intoxicated, but you further find from the 

evidence beyond a reasonable doubt that the defendant, previously 

thereto, had not been convicted of the offense of operating a motor vehicle 

in a public place, while intoxicated, then you will find the defendant guilty 

of the offense of unlawfully operating a motor vehicle in a public place 

while intoxicated . . . .

(Emphasis added). Appellant asserts this instruction shifted the burden of proof to him 

to prove beyond a reasonable doubt he had not been previously convicted of driving 

while intoxicated before the jury could consider the lesser-included Class B 

misdemeanor offense. Appellant did not object to the charge. Given the State’s 

concession of error, we proceed to conduct a harm analysis for egregious error 

pursuant to Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. on 

reh'g).

STANDARD OF REVIEW—UNOBJECTED-TO CHARGE ERROR

Unobjected-to charge error is reversible if it is so egregious and creates such 

harm that it deprives the accused of a "fair and impartial trial." See Almanza, 686 

S.W.2d at 172. See also Trejo v. State, 280 S.W.3d 358, 261 (Tex. Crim. App. 2009). 

Errors that result in egregious harm are those that affect "the very basis of the case,” 
5

“deprive the accused of a valuable right,” or “vitally affect his defensive theory." See 

Almanza, 686 S.W.2d at 172. See also Sanchez v. State, 209 S.W.3d 117, 121 (Tex.

Crim. App. 2006).

When reviewing harm resulting from charge error, an appellate court must 

determine harm in light of four factors: (1) the entire jury charge, (2) the state of the 

evidence, including contested issues and the weight of probative evidence, (3) the 

arguments of counsel, and (4) any other relevant information revealed by the record of 

the trial as a whole. See Almanza, 686 S.W.2d at 174. See also Ngo v. State, 175 

S.W.3d 738, 743 (Tex. Crim. App. 2005). Additionally, there is no burden of proof or 

persuasion in a harm analysis conducted under Almanza. 

(1) The Entire Jury Charge

The trial court is required to provide the jury with “a written charge distinctly 

setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 

(West 2007). Because the charge is the instrument by which the jury convicts, it must 

contain an accurate statement of the law and must set out all the essential elements of 

the offense. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). 

The court’s charge in the guilt/innocence phase is lengthy and, as previously 

stated, includes instructions on different levels of driving while intoxicated—a Class B 

misdemeanor, a Class A misdemeanor and a third degree felony.

6

 The Class A and 

Class B offenses are presented as lesser-included offenses, only applicable if the jury is 

not unanimously convinced of the greater offense.

 

6

TEX. PENAL CODE ANN. §§ 49.04(b), 49.09(a), (b)(2). 
6

Here, the error occurs in paragraph seven, the application paragraph for a Class 

B misdemeanor, which the jury would have reached only if it had failed to reach a 

unanimous verdict on the original charge of felony driving while intoxicated. 

Furthermore, paragraph seven notwithstanding, paragraph twelve instructs the jury to 

consider the charge as a whole and paragraph seventeen instructs the jury that 

Appellant does not have to prove his innocence or produce any evidence at all, and the 

State has the burden of proving his guilt by proving each and every element beyond a 

reasonable doubt. Absent evidence to the contrary, we presume the jury understood 

and followed the court’s charge. Gelinas v. State, 398 S.W.3d 703, 706 (Tex. Crim. 

App. 2013). While the inadvertent inclusion of the word “not” certainly could have been 

misleading, we find that a reading the charge in its entirety weighs against the likelihood 

of confusion and a finding of egregious harm.

(2) The State of the Evidence

Driving while intoxicated is a strict liability crime—it does not require a specific 

mental state, only a person operating a motor vehicle on a public roadway while 

intoxicated. See Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim. App. 2013) (citing

Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975)). Driving while 

intoxicated may be supported by circumstantial evidence if there is a temporal link 

between an accused’s intoxication and his driving. See Kuciemba v. State, 310 S.W.3d 

460, 462 (Tex. Crim. App. 2010). See also Smithhart v. State, 503 S.W.2d 283, 285 

(Tex. Crim. App. 1973). 
7

Appellant contested the charge against him. He entered a plea of not guilty to the 

primary offense and pleas of not true to the two enhancement allegations.7 The State 

presented evidence of Appellant’s erratic and dangerous driving pattern as witnessed 

by the Homeland Security Investigation agent. That agent was previously employed as 

a Florida Highway Patrol Officer and, as such, had prior experience responding to 

driving while intoxicated calls. Testimony also established Appellant smelled of alcohol 

and had numerous containers of beer in his vehicle. A chemist for the Texas 

Department of Public Safety testified that Appellant’s blood alcohol content was 0.274, 

more than three times the legal limit in Texas. 

Furthermore, of significance to the alleged error, an investigator for the 

prosecution with expertise in fingerprints linked Appellant to two prior driving while 

intoxicated convictions through certified copies of judgments which were admitted into 

evidence. The probative evidence of the primary offense and the two prior driving while 

intoxicated convictions weighs heavily against a finding of egregious harm.

(3) The Arguments of Counsel

During voir dire, the State acknowledged its burden to prove all elements of the 

indicted offense, including the two prior convictions, beyond a reasonable doubt. The 

prosecutor stated that the burden never shifts to the defendant. Defense counsel 

likewise stated the burden was on the State to prove all elements beyond a reasonable 

doubt. During closing arguments, the prosecutor explained the State was required to 

prove the contents of paragraph five of the charge, which instructed the jury on the 

 

7 During the punishment phase, Appellant entered pleas of true to the enhancement allegations 

and instructed defense counsel not to object or contest other judgments when offered into evidence.
8

primary offense with two prior driving while intoxicated convictions. The prosecutor 

further explained that if the jury rejected the two priors, it could then consider the lesserincluded offenses, including the possibility that Appellant had no priors. Both the 

prosecutor and defense counsel reiterated during closing arguments that the burden of 

proof was always on the State to prove every element of the offense beyond a 

reasonable doubt. Accordingly, the arguments of counsel weigh against a finding of 

egregious harm.

(4) Any Other Relevant Information

Prior to voir dire, the trial court instructed the jury that the State was required to 

prove the driving while intoxicated offense alleged, as well as the two prior driving while 

intoxicated convictions. The court continued that Appellant did not have to prove his 

innocence or produce any evidence at all. The jury did not ask any questions during 

deliberations and those deliberations were not lengthy. There is no indication of any

confusion by the jury or even consideration of the lesser-included offenses. The jury’s 

rejection of the lesser-included offenses rendered the erroneous instruction in 

paragraph seven harmless. The State established beyond a reasonable doubt the 

elements of the primary offense of driving while intoxicated and the two prior driving 

while intoxicated convictions. As such, this factor also weighs against a finding of 

egregious error.

In balancing the four Almanza factors, we conclude the error in paragraph seven 

of the charge did not affect the very basis of Appellant’s case, deprive him of a valuable 
9

right, or vitally affect a defensive theory. Appellant has not demonstrated the lack of a 

fair and impartial trial resulting in egregious harm. His sole issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle

 Justice

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