OPINION 

No. 04-07-00618-CR 

Jeovany VARGAS, 

Appellant 

v. 

The STATE of Texas, 

Appellee 

From County Court at Law No. 12, Bexar County, Texas 

Trial Court No. 922362 

Honorable Michael E. Mery, Judge Presiding 

Opinion by: Rebecca Simmons, Justice 

Sitting: Alma L. López, Chief Justice 

 Catherine Stone, Justice 

 Karen A. Angelini, Justice 

 Sandee Bryan Marion, Justice 

 Phylis J. Speedlin, Justice 

 Rebecca Simmons, Justice 

 Steven C. Hilbig, Justice 

Delivered and Filed: August 27, 2008 

AFFIRMED 

Appellant Jeovany Vargas was convicted by a jury for the offense of driving while 

intoxicated and the trial court assessed punishment at one year in the county jail, probated for a 

term of two years and a $1,000.00 fine. Vargas’s sole point on appeal is that the trial court’s 

instruction, that the jury may consider Vargas’s refusal to submit to a breath test as evidence 

against him, was error because it was an improper comment on the weight of evidence. We 
04-07-00618-CR 

agree. However, because the record fails to show egregious harm, we affirm the judgment of the 

trial court. 

FACTUAL BACKGROUND

On August 18, 2005, Vargas was stopped by Castle Hills Police Officer Clark Medina for 

swerving and failing to use a signal when changing lanes. Upon approaching the vehicle, Officer 

Medina noted slurred speech, a strong odor of intoxicants, and confusion on the part of Vargas. 

After several failed field sobriety tests, Vargas was placed under arrest for suspicion of drunk 

driving and transported to the Castle Hills police station. After Officer Medina explained the 

consequences of refusing to provide a breath sample, Vargas refused. In accordance with section 

724.061 of the Texas Transportation Code, the trial court admitted Vargas’s refusal to submit to 

the breath test into evidence. Additionally, the trial court’s charge instructed the jury: “You are 

instructed that you may consider the defendant’s refusal to submit to a breath test as evidence in 

this case.” Defense counsel did not lodge an objection to the jury charge. 

JURY INSTRUCTION

Article 36.14 of the Texas Code of Criminal Procedure governs the requirements of the 

jury charge. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). Specifically, article 36.14 

provides that the trial court shall deliver: 

a written charge distinctly setting forth the law applicable to the case; not 

expressing any opinion as to the weight of the evidence, not summing up the 

testimony, discussing the facts or using any argument in his charge calculated to 

arouse the sympathy or excite the passions of the jury. 

TEX. CODE CRIM. PROC. art. 36.14. 

A. Application of Texas Transportation Code Section 724.061 

Vargas concedes that his refusal to submit to a breath test is admissible evidence, but 

argues that the trial court may not instruct the jury regarding the defendant’s failure to submit to 

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a breath test. TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999). Vargas requests this Court 

overrule its previous holding in Segura v. State, No. 04-05-00320-CR, 2006 WL 1748438, at *1 

(Tex. App.—San Antonio June 28, 2006, no pet.) and apply the analysis contained in Hess v. 

State, 224 S.W. 3d 511, 515 (Tex. App.—Fort Worth 2007, pet. ref’d). In Hess, the court held 

that such an instruction was error because it singled out specific evidence and unduly 

emphasized the defendant’s refusal to take a breath test while failing to clarify the law. 

The jury instruction in the present case, just as in Segura and Hess, mirrors the language 

of section 724.061. TEX. TRANSP. CODE ANN. § 724.061 (“a person’s refusal . . . to submit to the 

taking of a specimen of breath or blood . . . may be introduced into evidence at the person’s 

trial.”); Segura, 2006 WL 1748438 at *1; Hess, 224 S.W. 3d at 515. The State argues, when the 

court’s charge tracks the language of the applicable statutes, there is no error in that portion of 

the charge. Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978). 

In Segura, this Court determined the identical instruction was not a comment on the 

weight of the evidence: 

Although the instruction directs the jury’s attention to [the defendant’s] refusal to 

submit to a breath test, the instruction does not direct the jury to draw any 

particular inference from this fact; nor does it tell the jury how [the defendant’s] 

refusal related to the ultimate issue of intoxication. . . . The jury was thus free to 

draw whatever inference it wanted. By not requiring any particular inference to 

be drawn, the instruction does not assume the truth of the controverted issue—

[the defendant’s] intoxication—and is therefore not a comment on the weight of 

the evidence. 

Segura, 2006 WL 1748438 at *1. In direct conflict with Segura, the Hess Court held the same 

instruction constituted an impermissible comment on the weight of the evidence because it 

unjustifiably singled out a particular piece of evidence for special attention. Hess, 224 S.W.3d 

at 515 (“[E]ven a seemingly neutral instruction about a particular type of evidence constitutes an 

impermissible comment on the weight of the evidence.”). The Fort Worth appellate court 

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reasoned that section 724.061 was a tool to assist the trial court in determining the admissibility 

of certain evidence, it was not a “tool enacted for the benefit of the jury.” Id.; TEX. TRANSP.

CODE ANN. § 724.061. Moreover, by including the instruction in the jury’s charge, the trial court 

drew attention to the defendant’s refusal to take the breath test. Hess, 224 S.W.3d at 515. 

A similar issue over the propriety of instructing the jury on a particular piece of evidence 

arose in the area of flight following the commission of a crime. Flight is admissible as a 

circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 

859 (Tex. Crim. App. 1989). Yet, it is “well settled a jury instruction on flight is improper 

because it comments on the weight of the evidence.” Santos v. State, 961 S.W.2d 304, 306 (Tex. 

App.—Houston [1st Dist.] 1997, pet. ref’d) (holding “the instruction assumes the existence of 

flight. Even though the instruction constitutes an accurate statement of the law, it magnifies a 

particular fact giving unfair emphasis to that fact”). 

We agree with the reasoning set forth in Hess. Hess, 224 S.W.3d at 515. The instruction 

in the present case highlights Vargas’s refusal to submit to the breath test and, therefore, amounts 

to an impermissible comment on the weight of the evidence. We, therefore, explicitly overrule 

our previous holding in Segura. Segura, 2006 WL 1748438 at *1. Having found error, we next 

address harm. 

HARM ANALYSIS

A. Almanza v. State 

Perhaps relying on our prior opinion in Segura, defense counsel failed to object to the 

charge. Absent an objection, Almanza requires the record show a defendant has suffered not 

only actual harm, but egregious harm resulting from the incorrect charge. Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing the proper standard of review for jury 

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charge error in the absence of an objection to jury charge error). Egregious harm arises if the 

error is so severe that it deprived the accused of a fair and impartial trial. Id. An appellate court 

considers (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, 

and (4) any other relevant information in the record as a whole. Richardson v. State, 879 S.W.2d 

874, 882 (Tex. Crim. App. 1993); Almanza, 686 S.W.2d at 171. Because Vargas’s trial counsel 

failed to object, reversal is only required if Vargas suffered egregious harm from the trial court’s 

error. Almanza, 686 S.W.2d at 171. 

B. Analysis 

Officer Medina’s testimony regarding his observations of Vargas provides a plethora of 

evidence upon which the jury could have assessed guilt: 

(1) swerving within his own lane; 

(2) a strong smell of intoxicants; 

(3) slurred speech; 

(4) apparent confusion; 

(5) failing two field sobriety tests; and 

(6) refusing to submit to the requested breath test. 

Although Vargas asserts that the State improperly argued his failure to submit to the breath test 

during its closing argument, there is no dispute the evidence was properly admitted before the 

jury. Proper jury argument includes summation of the evidence presented at trial, reasonable 

deduction drawn from that evidence, answer to the opposing counsel’s argument, and a plea for 

law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Thus, any 

comment by the State on Vargas’s failure to submit to the breath test was proper jury argument. 

Absent any evidence to the contrary, the jury could have assessed Vargas’s guilt, beyond 

a reasonable doubt, based on other evidence presented at trial. See Brown v. State, 122 S.W.3d 

794, 803-04 (Tex. Crim. App. 2003) (holding that similar instruction was “mild, neutral, and an 

obvious common-sense proposition” and although error, could not be viewed, “in any sense, 

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harmful under Almanza”). Moreover, the record lacks any evidence that the error was either 

calculated to injure the rights of the defendant or deprived the defendant of a fair trial. See Hess, 

224 S.W.3d at 515; Almanza, 686 S.W.2d at 171. Thus, Vargas failed to prove egregious harm 

and we affirm the judgment of the trial court. 

Rebecca Simmons, Justice 

PUBLISH 

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