Case Involving Testimony About Refusal to Breath Sample
In Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986), the Court of Criminal Appeals stated:
"a trial court is required to include a properly worded Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained." Id. at 707.
In Thomas, the appellant testified but never controverted facts surrounding his refusal to provide a breath sample. See id.
The court found that no instruction to the jury was necessary because there was no factual dispute as to how the evidence was obtained. See id.