# Bartlett v. State

> Court of Criminal Appeals of Texas · November 26, 2008 · 270 S.W.3d 147

URL: https://www.frixlaw.com/law-library/cases/9656835

## Case

- **Full name:** Roy Bob BARTLETT, Appellant v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 26, 2008
- **Citations:** 270 S.W.3d 147; 2008 Tex. Crim. App. LEXIS 1445; 2008 WL 5047703
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Price, Keller, Meyers, Womack, Johnson, Keasler, Holcomb, Cochran, Hervey
- **Cited by:** 311 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9656835

## How later opinions describe it (automated extraction)

- stating that “[a]s a general rule, a trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case; it should not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any argument…
- concluding that although evidence of a person’s refusal to submit to a breath test may be introduced at trial because it tends to show a consciousness of guilt, a jury is not authorized “to presume a consciousness of guilt from the refusal to take a breath test”
- explaining that outside of certain statutorily-recognized exceptions, “a trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur”
- holding that trial court’s seemingly neutral explanation of the law with respect to the admissibility of the refusal to take a breath test constituted an impermissible comment on the weight of the evidence

## Opinion text

JOHNSON, J.,
filed a concurring opinion.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9656835. Public record. Not legal advice.