

Dissenting opinion
issued March 17, 2011
 

In The
Court
of Appeals
For The
First
District of Texas
————————————
NOS. 01-09-00631-CR
01-09-00632-CR
———————————
 
PHILLIP ABEL HERNANDEZ, Appellant
V.
State of Texas, Appellee

 

 
On Appeal
from the 263rd District Court 
Harris County, Texas

Trial Court Case Nos. 1066022 and
1066023
 

 
DISSENTING OPINION
          There are
times during the course of jury trials that the actions or statements of
witnesses, attorneys, or jurors may threaten a fair trial and the presiding judge
must carefully instruct the jury to disregard the action or statement so as not
to prejudice the proceedings.
          When, however, the “skunk in the box” is of the judge’s
very own doing, the notion that all is somehow deodorized or counter-balanced
by the boilerplate language of the court’s charge is a hope too far.
          Absent the trial judge’s comment on the evidence, there
would be no doubt this defendant received a fair and impartial trial.  I cannot, however, consider the judge’s error
in this instance as harmless.  In fact,
the response to the jury’s specific inquiry seeking the law on a “single witness”
case not only tracked the language of an inapplicable statute but bolstered the
victimization of the complainant. Such a written response from the presiding
judge cannot be realistically thought not to impermissibly color a jury’s decision.
          The court’s charge and the judge’s
note are to be read and evaluated en toto.  To expect, however, that a jury will not
ascribe a greater weight to the judge’s own written answer to its specific
question (which the majority correctly holds was a comment on the weight of the
evidence) than it does to the charge may be a laudable aspiration, but as a
practical matter played out in a courtroom in real time is simply not realistic.
 
 
          I dissent.
 
 
 
                                                                   Jim
Sharp
                                                                   Justice

 
Panel consists of Justices Keyes, Sharp, and
Massengale. 
Justice Sharp, dissenting.
Publish.  Tex. R. App. P. 47.2(b).

