Atkinson v. State

¶1dissenting on state’s petition for discretionary review.

¶2Today a majority of this Court requires a trial judge under Article 38.23, V.A.C.C.P., to include a defendant’s requested instruction as to the admissibility of evidence in the jury charge even though the evidence was clearly admissible and the conditions upon which the defendant wanted the instruction were simply predicate questions to the admissibility of the evidence. To this proposition, I dissent.

¶3At trial appellant requested that the following instruction, in its entirety, be included in the charge to the jury:

“You are instructed that under our law in order to be considered valid, a chemical test must be performed according to the rules and regulations governing such test by the Department of Public Safety concerning proper techniques and methodology-

“Included in those regulations are:

(1) continuous observation of the person tested for a minimum of fifteen (15) minutes prior to the actual test;

(2) operating the reference sample device by blowing through it to see that the bubbling is reduced;

(3) checking the temperature to determine if it is 34 degrees plus or minus 2 degrees;

*28(4) keeping the breath tube housed inside the machine until the subject is required to give a sample.

“If you have found beyond a reasonable doubt that each of these regulations were complied with you may consider such test and give it whatever weight that you choose.

“If you do not so find or if you have a reasonable doubt as to whether these regulations were complied with you may not consider said test for any purpose and shall not refer to it in your deliberations.” Atkinson v. State, 871 S.W.2d 252, 253 (Tex.App.— Ft. Worth 1994).

¶4The trial judge found that the above requested charge impermissibly commented on the weight of the evidence and denied the requested charge. The Court of Appeals held that the trial court erred by refusing to include the requested instruction in the jury charge, and that the error harmed appellant. Id. at 257. They, accordingly, reversed the decision of the trial court and remanded the cause for a new trial.

¶5We granted the State’s petition for discretionary review in order to address the following questions for review: (1) whether the Court of Appeals correctly determined that appellant’s requested instruction was not a comment on the evidence, and (2) whether the Court of Appeals applied the correct standard in determining that appellant suffered actual harm from the denial of his instruction.

¶6The majority now uses the old version1 of 37 Tex.Admin.Code Section 19.3(i), which is a Department of Public Safety requirement that a technician continuously observe the person tested for at least 15 minutes before administering him the test along with Article 6701Z-5, Section 3(a), (b), V.A.C.S. (West Supp.1995), which states in part “[ajnalysis of a specimen of the person’s breath, to be considered valid ..., must be performed according to the rules of the Texas Department of Public Safety[.j”, and Article 38.23, V.A.C.C.P., to hold that appellant was entitled to his requested instruction.

¶7Article 38.23(a), Y.A.C.C.P. provides: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Article 6701Z-5, Section 3(a), V.A.C.S., states in part that “[ajnalysis of a specimen of the person’s breath, to be considered valid ..., must be performed according to the rules of the Texas Department of Public Safety....” (emphasis added). Validity of evidence goes to the weight or credibility of that evidence. See Slagle v. State, 570 S.W.2d 916, 919 (Tex.Cr.App.1978); Ray v. State, 749 S.W.2d 939, 944 (Tex.App.— San Antonio 1988); Kaufman v. State, 632 S.W.2d 685, 688 (Tex.App.— Eastland 1982, pet. ref'd). Admissibility under Article 38.23 goes to the legality of the seizure of the evidence. See Article 38.23, V.A.C.C.P. It is a far stretch indeed to hold that because an officer has his back to a defendant for a second or two2 during the 15 minute time period required by a Department of Public Safety Regulation3 that this amounts to a possible illegal seizure under Article 38.23 upon which the jury should be charged. The dispute involving the 15 minute observation goes to the validity, credibility, and weight of the evidence, but in no way to the legality of its seizure. *29Hence, any charge like the one appellant requested would be an impermissible comment on the validity, credibility, or weight of that evidence in that it singles out that piece of evidence for heightened jury scrutiny. See Caldwell v. State, 818 S.W.2d 790 (Tex.Cr.App.1991).

¶8Further, the majority does not address the other three predicate questions4 which were included in appellant’s requested charge. The Court of Appeals held that appellant’s requested instruction was not an impermissible comment on the weight of the evidence and that it was error for the trial judge not to include it in the jury charge. We granted the State’s petition for discretionary review in order to answer in part “whether the Court of Appeals correctly determined that the appellant’s requested instruction was not a comment on the evidence.” (emphasis added). However, the majority conveniently ignores the entire requested charge, plucks one portion of it out, and interprets a term contrary to its plain meaning.

¶9I would hold that appellant’s requested charge was an impermissible comment on the weight of the evidence and reverse the judgment of the Court of Appeals and remand to them to address the appellant’s remaining point of error.5 To the majority’s decision to do otherwise, I dissent.