Reversed and Rendered in Part, Reversed and Remanded in Part, and 

Substitute Majority and Dissenting Opinions filed July 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00706-CR

JOEL NAVARRO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1836127

S U B S T I T U T E D I S S E N T I N G O P I N I O N 1

When police responded to a single-vehicle accident, they found the vehicle’s 

two occupants — appellant and his girlfriend — in the middle of the freeway. Both 

were injured. A motorist reported that he had seen their truck veer into the 

highway’s median. The truck flipped three times, ejecting the girlfriend and 

 

1

The dissenting opinion dated May 28, 2015, is withdrawn, and this opinion is issued in its 

place.
2

leaving her unconscious. At the scene, appellant admitted to a police officer that 

he sat down behind the wheel of the truck and turned the key. Appellant later 

admitted to having consumed five beers before getting behind the wheel. The jury 

convicted appellant of driving while intoxicated (“DWI”). Today, the court 

reverses the conviction.

In an apparent first in the history of Texas jurisprudence, the majority holds 

the trial court erred in defining a term for the jury using the same unambiguous 

language the Texas Legislature used to define the term in the statute establishing 

the charged offense. After finding error, the majority also finds harm, despite 

overwhelming evidence that appellant was driving while intoxicated. Seeing

neither error nor harm, I respectfully dissent.

The Jury Charge

In the jury charge for the guilt/innocence phase, the trial court defined 

“alcohol concentration” as “the number of grams of alcohol per 100 milliliters of 

blood.” Appellant objected and requested the trial court to insert the word “whole” 

so that the definition would read “the number of grams of alcohol per 100 

milliliters of whole blood.” The trial court overruled appellant’s objection and 

refused to submit the definition in the form appellant requested. 

Article 36.14 of the Code of Criminal Procedure requires a trial court to 

provide a written jury charge distinctly setting forth the law applicable to the case.2 

The definition the trial court submitted tracks the plain language the Texas 

Legislature chose to define “alcohol concentration” in the DWI statute.3In this 

 

2

See Tex. Code Crim. Proc. art 36.14 (West, Westlaw through 2013 3d C.S.); Casey v. State, 

215 S.W.3d 870, 886 (Tex. Crim. App. 2007). 

3

See Tex. Penal Code Ann. § 49.01(1) (stating that “‘[a]lcohol concentration’ means the number 

of grams of alcohol per . . . 100 milliliters of blood”) (West, Westlaw through 2013 3d C.S.). 
3

definition, the trial court set forth the law applicable to the case.4 A jury charge 

that tracks the language of a particular statute is a proper charge on the statutory 

issue.

5

No Error

Citing a leading dictionary and a medical textbook, the majority explains 

that the plain meaning of the term “blood” is whole blood and concludes the trial 

court erred in refusing to substitute the term “whole blood” for the term “blood” 

because the charge had a “variable” meaning in the eyes of the jury. The majority 

concludes the charge had a variable meaning because the State’s expert witness did 

not know whether the term “blood” meant “whole blood” in a legal context. The 

expert did not testify that the term meant blood plasma. The expert explained that 

blood plasma and whole blood are different in that the Houston Police Department 

crime lab uses whole blood if it is available and converts blood plasma into whole 

blood if whole blood is not available. In response to a question asking if the expert 

was aware whether Texas law required whole blood or blood plasma, the expert 

stated: 

Without -- we report all values as the blood alcohol whole blood 

equivalent. I know we do run serum and plasma and then convert 

them to the whole blood equivalent and that is standard practice 

through the United States. I’m not going to go off and venture to say 

what Texas [l]aw specifically delineates in their statutes.

 

4

See Casey, 215 S.W.3d at 886–87. 

5

See Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). Citing to two opinions, the 

majority states that the jury should be given the definition of a term that has acquired a technical 

or established legal meaning. See Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App. 

2000); Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003) (plurality op.). But, in

neither did the Court of Criminal Appeals hold the trial court abused its discretion in not 

charging the jury on the definition of a term with a technical or established legal meaning. In 

any event, neither the majority nor the parties cite any cases holding that “blood” is either a 

technical term or a term with an established legal meaning.
4

The majority concludes the State obfuscated the meaning by objecting to any 

suggestion that whole blood is the sole unit of measurement under the statute. But, 

the trial court overruled those objections.

Neither appellant nor the majority cite, and research has not revealed, any 

Texas precedent holding that the trial court’s definition of “alcohol concentration” 

is erroneous or that appellant’s proffered definition is required. Nor has research 

revealed any Texas precedent holding that a trial court errs in submitting a jury 

charge that tracks the applicable Texas statute. This court should not do so. 

Instead, the court should conclude that the trial court did not err in overruling 

appellant’s objection and refusing to submit the definition in the form appellant 

requested.6 Because the trial court did not err, there is no need to conduct a harm 

analysis. 

No Harm

Even presuming for the sake of argument that the trial court erred in 

rejecting appellant’s proposed jury charge, the error is harmless. If a jury charge 

contains error, an appellate court must analyze that error to determine whether it is 

harmful.7 Because appellant timely objected to the charge, this court should

reverse only if appellant suffered “some harm.”

8

 In assessing harm under this 

standard, the court is to weigh (1) the jury charge as a whole; (2) the arguments of 

counsel; (3) the entirety of the evidence; and (4) any other relevant factors present 

in the record.9Even though the “some harm” standard is a low threshold, to find 

 

6

See Casey, 215 S.W.3d at 886; Riddle, 888 S.W.2d at 8. 

7 Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

8

See id. 

9

See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
5

“some harm” the reviewing court must find actual harm, rather than just theoretical 

harm.10 Neither party bears the burden on appeal to prove harm or harmlessness.11 

In assessing the jury charge as a whole, the majority notes that the charge 

required the jury to find appellant guilty if the jury determined appellant was 

intoxicated under either an impairment theory or a per se theory. The majority 

finds “some harm” from the charge because the jury may have disregarded the trial 

court’s unambiguous instructions and found that appellant was intoxicated based 

solely on a finding that appellant’s blood plasma had an alcohol concentration of 

0.08 or more. In analyzing counsel’s closing arguments, the majority notes the 

State may have emphasized the alleged jury-charge error. As the majority

acknowledges, however, in the balance of appellant’s argument he argues he was 

not the driver—an argument the jury rejected—and that the evidence did not show 

he was impaired under the impairment theory of intoxication.

The State presented substantial evidence that appellant was intoxicated 

under both per se and impairment theories. The alcohol concentration of 

appellant’s blood plasma was .158. The expert testified that, on average, 16

percent of whole blood is consumed by cellular material. According to the expert, 

blood plasma does not contain that material, which means the alcohol 

concentration of blood plasma, on average, is 16 percent higher than the alcohol

concentration of whole blood. Using this calculation, the expert converted 

appellant’s plasma-alcohol concentration of .158 to a whole-blood-alcohol 

concentration of .132, well above 0.08.12

 

10 Id.

11 Id. at 462.

12 Significantly, to the extent the jury was relying upon the alcohol-concentration part of the 

definition of “intoxicated,” the jury was asked to determine whether the evidence proved beyond 
6

The majority emphasizes the expert’s testimony that the percentage of a 

whole blood cell consumed by cellular material can vary under certain 

circumstances, including blood cancer. The expert noted that in the case of 

leukemia, 50 percent to 60 percent of an affected individual’s whole blood could 

contain cellular material. The majority notes that if appellant’s blood-cell 

composition mirrored that of a cancer patient, then appellant’s whole-bloodalcohol concentration would have been .079, just under the legal limit of .08. But, 

appellant’s blood composition did not mirror a leukemia patient’s blood 

composition. 

The record evidence contains appellant’s medical records.13 Among them is 

a hematology report.14 This report contains a complete blood count with reference 

ranges. The report shows that appellant’s red blood cell count, hemoglobin level, 

and platelet count were all within the reference range and that only appellant’s 

white blood cell count was outside of the reference range. Appellant’s 

hematologic history is checked as “normal.” Appellant’s medical records contain

no notation of a leukemia diagnosis or any other blood or bone marrow disorder. 

This evidence weighs against the conclusion that appellant’s plasma blood-alcohol 

concentration was 50 percent to 60 percent higher than his whole blood-alcohol 

 

a reasonable doubt that the blood-alcohol concentration was .08 or greater; the jury was not 

asked to make any determination regarding an alcohol concentration of 0.15 or higher.

13 The trial court advised the jury that exhibits would be delivered to the jury room if 

requested. This instruction accords with Texas Code of Criminal Procedure article 36.25, which

provides that exhibits must be furnished to the jury upon the jury’s request. See Tex. Code Crim. 

Proc. Ann. art. 36.25 (West, Westlaw through 2013 3d C.S.). 

14 The majority speculates about whether the medical records went into the jury room and 

whether the jury understood what the hematology report meant. The relevant inquiry is whether 

the report was part of the evidence the jury could consider. It was. In determining harm under 

Almanza, this court must consider the entire record. See Arrington v. State, 451 S.W.3d 834, 

840–44 (Tex. Crim. App. 2015) (reversing court of appeals for finding error harmful without 

considering entire record).
7

concentration. Considering this evidence in light of the expert’s testimony that, on 

average, an individual’s plasma blood-alcohol concentration is 16 percent higher 

than the individual’s whole blood-alcohol concentration, leads to the conclusion 

that appellant’s whole blood-alcohol concentration was over the legal limit of .08. 

Under a per se theory, the evidence supporting appellant’s conviction is strong.

The evidence also shows appellant was intoxicated under the impairment

theory.15 A paramedic who arrived on the accident scene testified that appellant 

told him (1) appellant had consumed four alcoholic beverages and (2) appellant 

was the driver of the truck. Medical records admitted into evidence include notes 

from a social worker. According to the notes, appellant told the social worker he 

had been drinking before the accident; appellant placed his consumption count at 

five beers rather than the four beers he had told the paramedic.16 Evidence shows 

that appellant was driving the truck on the interstate highway in light traffic and 

good conditions when the truck veered suddenly and sharply into a concrete barrier 

with enough force to roll the truck three times. Other evidence shows the 

circumstances of the single-vehicle crash suggested it was an alcohol-related event 

based on appellant’s admission to having consumed four or five beers before the 

crash as well as appellant’s behavior at the scene, which included lying to police 

officers.

17

 There are no other relevant factors.18

Weighing the jury charge as a whole, the arguments of counsel, the evidence 

 

15 See Butler v. State, 981 S.W.2d 849, 857–58 (Tex. App.—Houston [1st Dist.] 1998, 

pet. ref’d) (holding no harm resulted from charge error relating to one theory of guilt because 

evidence supported guilt under alternate theory). 

16 See Atkins v. State, 990 S.W.2d 763, 769 (Tex. App.—Austin 1999, pet. ref’d) (holding 

jury-charge error harmless in light of evidence the defendant was intoxicated, including 

admission of drinking multiple beers). 

17 See id.

18 The expert’s de minimis calculation errors did not significantly affect the evidence of 

appellant’s whole-blood-alcohol concentration.
8

presented in the case, and concluding there are no other relevant factors, this court 

should conclude that any error by the trial court is harmless because of the 

overwhelming evidence of appellant’s guilt.19 

Conclusion

The trial court charged the jury in accordance with Texas law. The trial 

court did not err in refusing appellant’s request to add language to the jury charge. 

Even if the trial court had erred in refusing appellant’s request, the error would be 

harmless because the evidence of appellant’s guilt is overwhelming. Therefore, 

this court should reverse the trial court’s judgment and remand this case to the trial 

court to reform the judgment to reflect a conviction for the Class B misdemeanor 

under Penal Code section 49.04(a), and to conduct a new punishment hearing. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby 

(Christopher, J., majority).

Publish — TEX. R. APP. P. 47.2(b).

 

19 See id.