                                                                                          PD-0478-15
                                                                         COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                       Transmitted 6/17/2015 11:57:18 AM
June 17, 2015
                                                                          Accepted 6/17/2015 1:25:24 PM
                                                                                          ABEL ACOSTA
                                 PD-0478-15                                                       CLERK

            IN THE TEXAS COURT OF CRIMINAL APPEALS
                                 AT    AUSTIN




                            NO. 14-13-00518-CR
         In the Court of Appeals for the Fourteenth District of Texas
                                  at Houston


                                NO. 1714161
                 In the County Criminal Court at Law Number 2
                            of Harris County, Texas


                           LISA ANN BARFIELD
                                  Petitioner


                                        V .


                          T H E S TAT E O F T E X A S
                                 Respondent


                PETITION FOR DISCRETIONARY REVIEW



                                      B R I T TA N Y C A R R O L L L A C AY O
                                      Texas Bar No. 24067105
                                      212 Stratford St.

                                      Houston, Texas 77006
                                      Telephone: (713) 504-0506
                                      Facsimile: (832) 442-5033
                                      Email: Brittany@bcllawfirm.com

                                      AT T O R N E Y F O R P E T I T I O N E R




                     ORAL ARGUMENT REOUESTED
TO THE COURT OF CRIMINAL APPEALS OF TEXAS;


      Comes now petitioner, Lisa Ann Barfield, by and through his undersigned

counsel, and presents this Petition for Discretionary Review pursuant to Tex. R.

App.P. § 5.

               I D E N T I T Y O F J U D G E . PA R T I E S . A N D C O U N S E L


      A complete list of the names of all interested parties is provided below so

that the members of this Honorable Court may at once determine whether they are

disqualified to serve or should recuse themselves from participating in the decision

of the case.


      Petitioner or Criminal Defendant:

               Lisa Ann BarHeld


      Counsel for Petitioner:

               Brittany Carroll Lacayo
               Counsel for Petition for Discretionary Review
               212 Stratford St.

               Houston, Texas 77006
               (713) 504-0506
               (832) 442-5033

               C h a r l e s F. B a i r d
               Counsel on Appeal
               State Bar No. 00000045
               Baird Farrelly, PLLC
               2312 Western Trails Blvd, Ste. 102-A
               Austin, Texas 78745-1677
               Telephone: (512) 804-5911
               Facsimile: (512) 804-5919
                                               11
      Email: jcfbaird@gmail.com
      E. Chevo Pastono
      Counsel on Appeal
      State Bar No. 24037240
      The Pastrono Law Firm, P.C.
      202 Travis, Ste. 307
      Houston, Texas 77002
      Telephone: (713)222-1100
      Facsimile: (832)218-7114
      Email: chevo@pastronolaw.com

      Mark Thiessen
      Counsel at Trial
      1221 Studewood Street
      Houston, Texas 77008
      Telephone: (713) 864-9000
      Facsimile: (713) 864-9006

Counsel for the State:

      Devon Anderson
      Harris County District Attorney
      Jamie Morrison
      Assistant District Attorney - Trial
      James Reed
      Assistant District Attorney - Trial
      Dan McCrory
      Assistant District Attorney - Appeal
      Harris County District Attorney's Office
      1201 Franklin Street, Ste. 600
      Houston, Texas 77002
      Telephone: (713) 755-5826
      Facsimile: (713) 755-5809

Trial Judge:

      Hon. Bill Harmon
      Harris County Criminal Court at Law No. 2
      1201 Franklin St.
      Houston, Texas 77002

                                   111
                                  TA B L E O F C O N T E N T S


IDENTITY           OF     JUDGE,            PA RT I E S ,        AND   COUNSEL     ii

TA B L E                     OF                         CONTENTS                   iv


INDEX                        OF                       AUTHORITIES                  vi


S TAT E M E N T          REGARDING                   ORAL         ARGUMENT       viii


S TAT E M E N T                OF                    THE           CASE          viii

S TAT E M E N T O F P R O C E D U R A L H I S T O R Y


QUESTIONS PRESENTED FOR REVIEW

ARGUMENT AND AUTHORITIES.


PETITIONER'S HRST QUESTION PRESENTED FOR REVIEW

       Is it an abuse of discretion for a trial court to deny a motion for
       continuance where trial counsel was without the normal use of his
       physical and mental faculties after suffering a recent head injury and
       petitioner was prejudiced by counsel's ineffective assistance at trial.
       (C.R. at 174-77)(2 R.R. at 4-5, 124)(3 R.R. at 46-47)(6 R.R. at
       State's Exhibit 1).



PETITIONER'S SECOND QUESTION PRESENTED FOR REVIEW 1

       Does a defendant have to show that the jury actually saw an exhibit
       admitted into evidence containing a previous DWI conviction and
       other unadjudicated offenses to demonstrate that she was prejudiced
       by trial counsel's ineffective assistance for failing to object when it
       was offered? (3 R.R. at 36-37)(4 R.R. at 164-68)(6 R.R. at Exhibit 1).

PETITIONER'S THIRD QUESTION PRESENTED FOR REVEIW 8

       Would the trial court have erred in overruling an objection to a
       reference to petitioner's first trial? (3 R.R. at 46-47).
                                               I V
PETITIONER'S FOURTH QUESTION PRESENTED FOR REVEIW                                   9


       Is it fundamental error for the trial court to display a MADD plaque
       behind the judge's chair, clearly visible to the jury during a DWI
       trial? (2 R.R. at 5).

PETITIONER'S FIFTH QUESTION PRESENTED FOR REVEIW

       Did the Court of Appeals err in holding that that the trial court was
       not impartial? (2 R.R. at 5, 6-7, 116-24)(3 R.R. at 33-34, 45, 46,
       90)(4 R.R. at 17-18, 34-36, 46, 49-51, 54, 73, 143, 145, 166).

PETITIONER'S SIXTH QUESTION PRESENTED FOR REVEIW

       Did the Court of Appeals err in holding that that the trial court's error
       in defining reasonable doubt in the jury charge did not cause actual
       harm to appellant's rights? (4 R.R. at 143)(C.R. at 187).

PETITIONER'S SEVENTH QUESTION PRESENTED FOR REVEIW

       Is error in defining reasonable doubt in the jury charge structural
       error? (2 R.R. at 22, 34, 54-55)(4 R.R. at 143)(C.R. at 187).

P R AY E R F O R R E L I E F


C E RT I H C AT E                 OF                  SERVICE                      21

APPENDIX                                                                           23




                                           V
                                INDEX OF AUTHORITIES


Statutes


Te x .               R.               App.                Proc.                5           ii
Te x .               R.              App.                Proc.               21.9          8

U.S. Supreme Court Cases

Arizona v. Fulminante,
   499                 U.S.                              279(1991)                        11
Cage V. Louisiana,
  498           U.S.                    39              (1990)               16,          18
Strickland v. Washington,
   466                 U.S.                               668(1984)                        6
Sullivan v. Louisiana,
   508              U.S.                         275              (1993)                  17
Tumey v. Ohio,
  273          U.S.                   510(1927)                  vi,           9,         11
Vasquez v. Hillery,
  474                       U.S.                         254(1986)                        11

Te x a s C a s e s


Abram v. State,
   35      S.W.           389         ( Te x .         Grim.     App.         1896)       18
Adkins v. State,
    418 S.W.3d 856 (Tex. App.—Houston [14th Dist] 2013, no pet. h.) 19
Abdygaparova v. State,
  243 S.W.3d 191 (Tex. App.—San Antonio 2007, pet. refd) 11, 12
Almanza v. State,
  686 S.W.2d               157        ( Te x .     Grim.       App.    1985)        54,   56
Anderson v. State,
    202        S.W.       944    ( Te x .        Grim.         App.    1918)        vi,   10
Battee v. State,
    543         S.W.2d          91     ( Te x .        Grim.      App.        1976)       46
Bethany v. State,
    814 S.W.2d 455 (Tex. App.—Houston [14th Dist] 1991, pet. refd) 5
Cortez V. State,
  571       S.W.2d          308           ( Te x .       Grim.        App.     1978)       5

                                                 V I
Crook V. State,
   11 S.W. 444 (Tex. Crim. App. 1889)                                   10
Geesa v. State,
   820 S.W.2d 154 (Tex. Crim. App. 1991)                                16
Green v. State,
   899 S.W.2d 245 (Tex. App.—San Antonio, no pet.)                        5
Harris v. State,
   790 S.W.2d 568 (Tex. Crim. App. 1989)                                19
Jimenez v. State,
   717 S.W.2d 1 (Tex. Crim. App. 1986)                                   2
Kirk V. State,
   32 S.W. 1045 (Tex. Crim. App. 1895)                                  10

Lagrone v. State,
   209 S.W. 411 (Tex. Crim. App. 1919)                                   9
Paulson V. State,
   28 S.W.3d 570 (Tex. Crim. App. 2000)                              15, 16
Rey V. State,
  897 S.W.2d 333 (Tex. Crim. App. 1995)                                 10
Rhodes v. State,
   357 S.W.3d 796 (Tex. App. Houston [14th Dist.] 2011, no pet.)        14

Simpson v. State,
   447 S.W.3d 264 (Tex.App—^Houston [1st Dist.] 2013, pet. ref d)    10, 14
White V. State,
   475 S.W.2d 927 (Tex. Crim. App. 1972)                                 2


Out of State Cases


Jackson v. State,
   464          So.2d          11 8 1           (Fla.       1985)     3,4
State V. Franklin,
   327            S.E.2d        449             ( W. Va .    1985)     15




                                        V l l
              S TAT E M E N T R E G A R D I N G O R A L A R G U M E N T


      Petitioner requests oral argument because the case presents novel legal

issues. Argument would aid the judges of this court in assessing the case.

                         S TAT E M E N T O F T H E C A S E


      On October 19, 2010, Petitioner was charged with driving while intoxicated

(DWI). (C.R. at 7). The first trial resulted in a conviction, but a new trial was

granted. (C.R. at 8-9, 10-25). The second trial also resulted in a conviction. (C.R.

at 189). Punishment was assessed at ninety days confinement in the Harris County

Jail and a $1000 fine, both probated for one year. (C.R. at 201-02). The Fourteenth

Court of Appeals affirmed the trial court's judgment in an opinion dated April 2,

2015. Appendix, Barfield v. State, No. 14-13-00518-CR, 2015 Tex. App. LEXIS

3251 (Tex. App. - Houston [14th Dist.] April 2,2015).

                 S TAT E M E N T O F P R O C E D U R A L H I S TO RY


      The court of appeals issued its opinion on April 2, 2015. Appendix, Barfield

V. State, No. 14-13-00518-CR, 2015 Tex. App. LEXIS 3251 (Tex. App. - Houston

[14"" Dist.] April 2,2015). Petitioner did not file a Motion for Rehearing.

      Appellant's petition for discretionary review is due on June 18, 2015.




                                         V l l l
               QUESTIONS PRESENTED FOR REVIEW


1. Is it an abuse of discretion for a trial court to deny a motion for continuance
   where trial counsel was without the normal use of his physical and mental
    faculties after suffering a recent head injury and petitioner was prejudiced by
   counsel's ineffective assistance at trial. (C.R. at 174-77)(2 R.R. at 4-5,
   124)(3 R.R. at 46-47)(6 R.R. at State's Exhibit 1).

2. Does a defendant have to show that the jury actually saw an exhibit admitted
    into evidence containing a previous DWI conviction and other unadjudicated
   offenses to demonstrate that she was prejudiced by trial counsel's ineffective
   assistance for failing to object when it was offered? (3 R.R. at 36-37)(4 R.R.
   at 164-68)(6 R.R. at Exhibit 1).

3. Would the trial court have erred in overruling an objection to a reference to
   petitioner's first trial? (3 R.R. at 46-47).

4. Is it fundamental error for the trial court to display a MADD plaque behind
    the judge's chair, clearly visible to the jury during a DWI trial? (2 R.R. at
   5).

5. Did the Court of Appeals err in holding that that the trial court was not
   impartial? (2 R.R. at 5, 6-7, 116-24)(3 R.R. at 33-34, 45, 46, 90)(4 R.R. at
   17-18, 34-36, 46, 49-51, 54, 73, 143, 145, 166).

6. Did the Court of Appeals err in holding that that the trial court's error in
   defining reasonable doubt in the jury charge did not cause actual harm to
   petitioner's rights? (4 R.R. at 143)(C.R. at 187).

7. Is error in defining reasonable doubt in the jury charge structural error? (2
    R.R. at 22, 34, 54-55)(4 R.R. at 143)(C.R. at 187).




                                       1
                         ARGUMENT      AND    AUTHORITIES



      First Question: Is it an abuse of discretion for a trial court to
      deny a motion for continuance where trial counsel was without
      the normal use of his physical and mental faculties after suffering
      a recent head injury and petitioner was prejudiced by counseFs
      ineffective assistance at trial. (C.R. at 174-77)(2 R.R. at 4-5,124)(3
      R.R. at 46-47)(6 R.R. at State's Exhibit 1).

      In the first issue on appeal, Petitioner complained that the trial court erred in


denying Petitioner's motion for continuance. In the instant case, trial counsel

clearly established that he was: (1) being forced to proceed without the normal use

of his physical and mental faculties; (2) "too ill" to proceed to trial; (3) under the

"disabling" influence of medication. (C.R. at 174)(2 R.R. at 4); (4) suffering from

a head injury that required five staples to close the open wound; (5) suffering from

an injured clavicle and sternum; (6) taking medication to alleviate the pain; and,

(7) unable to "effectively" represent appellant because he was light-headed due to

taking pain medicine along with cold medication. Compare with White v. State,

475 S.W.2d 927, 928 (Tex. Grim. App. 1972). Nevertheless, the trial judge

summarily denied the motion for continuance. (2 R.R. at 5).

      Additionally, the record in the instant cause reflects that counsel provided

ineffective representation in several respects. Compare with Jimenez v. State, 717

S.W.2d 1 (Tex. Grim. App. 1986). First, trial counsel allowed State's Exhibit I to

be admitted into evidence without the appropriate objection which contained

evidence of prior driving while intoxicated offenses and other unadjudicated
                                          2
offenses. (6 R.R. at State Exhibit 1). Additionally, trial counsel failed to object

when a witness repetitively referred to the first trial. (3 R.R. at 46-47). Finally,

during voir dire proceedings, the trial court called trial counsel's speaking abilities

into question in the following exchange:

      MR. THEISBEN: I have to perfect the record. Now I'm going to
                          h a v e t o s t r i k e M r. D r o k e b e c a u s e M r. M e r l a i s
                          getting one of my strikes, so Mr. Droke is going to
                          get left off.
      THE COURT: I didn't hear what your saying. Let's proceed. (2
                          R.R. at 124).

It is not clear whether trial counsel is slurring his speech, not speaking clearly or

having difficulty judging his volume due to his head injury, however, his attempts

to "perfect the record" were fhiitless as the trial court noted that he was unable to

hear trial counsel and, therefore, did not rule on trial counsel's attempt to "perfect

the record."


      Petitioner and the Court of appeals were unable to find a Texas case exactly

on point. However, petitioner's appellate brief cited a Florida case that seems to be

on all fours with the case at bar. In Jackson v. State, the motion for continuance

alleged that trial counsel suffered a head injury for which medication had been

prescribed. Jackson v. State, 464 So.2d 1181, 1182 (Fla. 1985). It was further

alleged that the medication caused the side effect of slurred speech and drowsiness

and that these temporary side effects could impair the effectiveness of his


                                               3
representation of the defendant before the jury. Id. The trial judge denied the

motion upon his belief that defense counsel was adequately articulating matters

then before the court. Id.


          Utilizing the abuse of discretion standard of review, the Jackson court

stated:


          We realize that, in most circumstances, the trial court should be
        restrictive in granting motions for continuances and must always be
        watchful that counsel is not manipulating or improperly delaying the
        judicial process. Given the unrefuted facts in this record, however, we
        hold that continuance was required and, accordingly, we reverse
        appellant's conviction and remand for a new trial.

M a t 11 8 2 - 11 8 3 .


          The record demonstrates that Appellant was harmed by trial counsel's

condition.


          Second Question: Does a defendant have to show that the jury
          actually saw an exhibit admitted into evidence containing a
          previous DWI conviction and other unadjudicated offenses to
          demonstrate that she was prejudiced by trial counsel's ineffective
          assistance for failing to object when it was offered? (3 R.R. at 36-
          37)(4 R.R. at 164-68)(6 R.R. at Exhibit 1).

          During the State's case in chief, the State offered Exhibit 1 into evidence,

which contained the 911 recording and dispatcher notes containing four (4)

separate statements that Mrs. Barfield was arrested in 2009 for felony DWI,

specifically described by case number, and two (2) separate indications that Mrs.




                                            4
Barfield was arrested "at the airport for trying to escape apprehension." (6 R.R. at

State Exhibit 1).

      Mrs. Barfield's trial counsel admitted that he had not been aware at the time


State's Exhibit 1 was offered that the "paperwork" was also a part of the exhibit

and that he had not bothered to review the "paperwork" prior to its admission. The

record demonstrates that trial counsel's failure to object to the extraneous

statements referring to the prior DWI arrest and attempted flight to avoid

apprehension was not motivated by sound trial strategy, but instead was

attributable entirely to oversight. (4 R.R. at 164-67).

      The Court of Appeals found that even assuming counsel was ineffective,

petitioner failed to demonstrate prejudice because petitioner did not cite any place

in the record showing that the jury ever actually saw the dispatcher notes. No cases

could be located requiring an appellant to show in the record when the jury

actually saw an exhibit to show harm. See Cortez v. State, 571 S.W.2d 308 (Tex.

Grim. App. 1978)(no discussion about whether or not the jury actually saw

improperly admitted exhibits, but whether their erroneous admission could have

affected the jury); Battee v. State, 543 S.W.2d 91 (Tex. Grim. App.

1976)(reversing the judgment of conviction where the trial court improperly

admitted an evidence envelope containing hearsay); Green v. State, 899 S.W.2d

245 (Tex. App.—San Antonio, no pet.)(no discussion by the court of appeals about


                                           5
whether the jury actually saw the prior mug shots or bank records showing

extraneous offenses when considering the ineffective assistance of counsel claim).

      Prejudice has resulted from counsel's deficient representation when there is

a "reasonable probability" that the results of the proceedings might have been

different but for counsel's errors. 466 U.S. 668, 689 (1984). A "reasonable

probability" is defined as probability sufficient to undermine the Court's

confidence in the outcome of the adversarial process. Strickland, 466 U.S. at 694.

      Furthermore, the record demonstrates that the jury did see the notes attached

to State's Exhibit 1.


      THE COURT: All right. It will be admitted.

      MISS MORRISON: Permission to publish, [yjour Honor?

      THE COURT: Yes, ma'am. Can you—all hear? Hold on a
                                minute.


      (3 R.R. at 36-37). Although, the record does not specifically discuss the

notes at this point, the record does indicate that State's exhibit 1, containing the

notes, was admitted into evidence and published to the jury. (3 R.R. at 36-37).

      Additionally, during the jury deliberations, the following exchange occurred:

      T H E C O U R T: . . . N o w w e g o t a n o t e : C a n w e h a v e t h e
                                transcripts of the 911 calls from October 18*'', 2010
                                from the three witnesses. And what I'm going to
                                send back is what's been admitted in evidence
                                as State's Exhibit No. 1.




                                          6
      MR. THIESSEN: Judge, my objection is that State's Exhibit 1, under
                         my understanding, was simply the 911 CD that
                         included all the calls. What you included are the
                         fifteen pages of computer-generated notes. These
                         aren't the transcripts. These are computer-
                         generated pieces of paper from the Houston
                         Emergency Center. It was my understanding the
                         State Exhibit 1 was simply the audio tape CD, and
                         so I object to these pieces of paper coming in. One,
                         they're not the actual transcripts; and two, that
                         they weren't properly admitted because it was my
                         understanding that only the audio CD was State
                                 Exhibit 1.


      MISS MORRISON: Well, they were filed with the district clerk on
                       February of 2011, as required. Business
                       Records Affidavit, you know, stapled together. It's
                                 marked State Exhibit No. 1. It was admitted in
                                 evidence, so I'm going to send it back.

(IV R.R. at I67-68)(emphasis added).

      Notably, during voir dire, the trial court informed the jury that "obviously"

if a person who is convicted of driving while intoxicated is shown to have a prior

conviction, the range of punishment is higher. (2 R.R. at 40, 42). In light of the

false evidence that Mrs. Barfield had been previously arrested for felony DWI, it is

only natural to conclude that if a prior conviction for driving while intoxicated will

"obviously" increase the punishment range in misdemeanor court, it must take

more than one prior conviction for driving while intoxicated to be arrested for

"felony DWI."




                                          7
       Third Question: Would the trial court have erred in overruling
       an objection to a reference to petitioner's first trial? (3 R.R. at 46-
       47).

       A finding or verdict of guilt in the former trial must not be regarded as a

presumption of guilt, nor may it be alluded to in the presence of the jury that hears

the case on retrial of guilt. A finding of fact or an assessment of punishment in the

former trial may not be alluded to in the presence of the jury that hears the case on

retrial of punishment. Tex. R. App. P. 21.9(d).

       Trial counsel objected to the initial reference to the first trial, but failed to

ask the trial judge to instruct the jury to disregard the remark. (3 R.R. at 46-47)

Then trial counsel wholly failed to make any objection to the second reference to

the first trial. (3 R.R. at 46-47) Rule 21.9 of the Texas Rules of Appellate

Procedure exists due to the highly prejudicial nature of evidence being put before a

jury that appellant had been previously tried and convicted. There can be no

strategic explanation for trial counsel's failure to object the second time the

witness alluded to the first trial.


       The Court of Appeals held that Tex. R. App. P. 21.9(d) addresses references

to a "finding or verdict of guilt" and does not address the admissibility of a mere

reference to a prior trial. However, the Court of Appeals' opinion only addresses

counsel's reference to "testimony from February 28, 2012." The Court of Appeals'

opinion does not mention the witness's reference to his testimony at the "last trial."

                                           8
(3 R.R. at 46-47). It only follows that if there is a subsequent trial petitioner was

not acquitted at the first trial. The result of such information provided to the jury

would undoubtedly prejudice petitioner.

      Fourth Question: Is it fundamental error for the trial court to
      display a MADD plaque behind the judge's chair, clearly visible
      to the jury during a DWI trial? (2 R.R. at 5).

      Prior to jury selection, defense counsel requested the trial judge to take

down a Mother's Against Drunk Drivers' plaque, which was located behind the

judge's chair that was clearly visible from the jury box. (2 R.R. at 5). The trial

judge denied the request. (2 R.R. at 5). The Court of Appeals refused to hold that

MADD plaque was fundamental error requiring reversal.

      Appellant's constitutional right to be tried by an impartial tribunal is

sacrosanct, regardless of the evidence against him. Tumey v. Ohio, 273 U.S. 510,

535 (1927). Consequently, the law contemplates that the trial judge shall maintain

an attitude of impartiality throughout the trial. Lagrone v. State, 209 S.W. 411,

415 (1919). The Lagrone Court recognized that jurors are prone to seize with

alacrity upon any conduct or language of the trial judge, which they may interpret

as shedding light upon his view of the weight of the evidence or the merits of the

issues involved. Moreover, the delicacy of the situation in which the trial judge is

placed requires that he be alert in his communications with the jury, not only to

avoid impressing them with any view that he has, but to avoid in his manner and


                                          9
speech things that they may so interpret. Anderson v. State, 202 S.W. 944, 946

(Tex.Crim.App. 1918); Crook v. State, 11 S.W. 444, 446 (1889); see Kirk v. State,

32 S.W. 1045, 1046(1895).

      The First Court of Appeals has addressed this precise issue involving the

same judge and the same type of offense, DWI. Simpson v. State, 447 S.W.Sd 264

(Tex. App—^Houston [1st Dist.] 2013, pet. ref d). The Simpson Court reached the

unarguable conclusion that the trial judge erred by displaying a MADD plaque. Id.

However, the Simpson court found the error harmless under Texas Rule of

Appellate Procedure 44.2(b). Id. The Simpson court applied the non-constitutional

error standard because the defendant couched her argument as a violation of

statutory law and the Code of Judicial Conduct. Id.

      Mrs. Barfield specifically contends the error of displaying a MADD plaque

in the instant case was error of constitutional magnitude and that such error is

immune from a harm analysis. The court of appeals stated, "[t]he record does not

contain any images of the plaque or its location in the courtroom." However, the

record does contain information on the plaques location in the courtroom. It is

located behind the bench, behind the judge's chair. (2 R.R. at 5).

      Petitioner relies upon the simple and well-recognized proposition that

certain constitutional rights are so basic to a fair trial that their violation can never

be treated as harmless. Rey v. State, 897 S.W.2d 333, 344 (Tex. Crim. App. 1995).


                                           10
One such basic right is to be tried before an impartial judge. Tumey, supra. The

United States Supreme Court has recognized numerous times that errors that

undermine the structural integrity of the criminal tribunal itself are not amenable to

harmless-error review. Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986), ("When

constitutional error calls into question the objectivity of those charged with

bringing a defendant to judgment, a reviewing court can neither indulge a

presumption of regularity nor evaluate the resulting harm."). See also, Arizona v.

Fulminante, 499 U.S. 279, 294, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

      Fifth Question: Did the Court of Appeals err in holding that
      that the trial court was not impartial? (2 R.R. at 5, 6-7, 116-24)(3
      R.R. at 33-34, 45, 46, 90)(4 R.R. at 17-18, 34-36, 46, 49-51, 54, 73,
      143,145,166).

      To avoid further erosions of confidence that our courts do, indeed, treat all

litigants with equal fairness, judges must keep themselves above suspicion by

scrupulously avoiding situations in which their fairness and integrity could appear

to be compromised. Tamminen v. State, 644 S.W.2d 209, 218 (Tex. App.—San

Antonio 1982), aff'd, 653 S.W.2d 799 (Tex. Grim. App. 1983); Abdygaparova v.

State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref d).

      It is axiomatic that every person accused of a crime is guaranteed a fair trial.

Bethany v. State, 814 S.W.2d 455, 456 (Tex. App.—Houston [14'^ Dist.] 1991, pet.
ref d). As the Supreme Court and the Court of Criminal Appeals have noted, "the

atmosphere essential to the preservation of a fair trial—^the most fundamental of all
                                          11
freedoms—^must be maintained at all costs." Id. (citations omitted). In an appeal

of this nature, it is the fundamental purpose of this Court to ascertain whether or

not the convicted defendant received a fair trial in the court below. Id. In making

this determination, any indication of prejudice or opinion of guilt on the part of

the trial judge requires close scrutiny of his actions. Id. (emphasis added).

      In the instant cause, the trial judge was not impartial and created a coercive

atmosphere, which operated to deny Mrs. Barfield a fair trial. In doing so, the trial

judge did all but wear the State team colors and clearly displayed that he was

"taking sides." Abdygapporova v. State, 243 S.W.Sd 191, 210 (Tex. App.—San

Antonio 2007, pet. ref d). Specifically, the trial judge's actions include, but are not

limited to, the following:

    1. Declining to take down his MADD (Mothers Against Drunk Drivers)
         Plaque clearly visible to the jury (2 R.R. at 5);

    2. Forcing Mrs. Barfield's trial counsel to try the instant cause in poor
        mental and physical health by denying his motion for continuance (2 R.R.
         at 5);

    3. After calling for the jury to enter the courtroom, the trial judge ordered
         trial counsel to not speak to the jury about his injuries (2 R.R. at 6-7);

    4. After calling for the jury to enter the courtroom, the trial judge threatened
         trial counsel with contempt and a 180 day jail sentence (2 R.R. at 7);

    5. Trial counsel stated that his announcement of "not ready" for trial was
         while the jury panel was in the courtroom and his request to explain that
         announcement to the jury was denied (2 R.R. at 7);

    6. Demonstrating his bias for the State and the police during his questioning
        of two venirepersons (2 R.R. at 116-124);

                                           12
   7. Coercing trial counsel, in the presence of the jury, to release a witness,
       Jolivet, from his subpoena rather than allowing the defense to reserve the
       witness on standby for the defense case in chief (3 R.R. at 33-34);

   8. Directing trial counsel's direct examination of Clark (3 R.R. at 45);

   9. Refusing to grant a mistrial after a witness, Clark, testified about Mrs.
       Barfield's first trial which resulted in a guilty verdict (3 R.R. at 46);

    10. Refusing to allow the defense to publish evidence to the jury (3 R.R. at
        90);

    11. Permitting trial by ambush by allowing the State to use evidence without
        having given the defense notice (4 R.R. at 17);

    12. Refusing to allow the defense to take a witness, Cuffy, on voir dire prior
        to testifying about scientific evidence, namely, horizontal gaze nystagmus
        (4 R.R.at 17-18);

    13. Curtailing the defense's cross examination of Cuffy (4 R.R. at 34-36);

    14. Refusing to allow the defense to publish evidence to the jury and
        controlling the defense's presentation of her evidence (4 R.R. at 46);
    15. Curtailing the defense's cross examination of Cuffy (4 R.R. at 49-51);

    16. Threatening to hold defense counsel in contempt for effectively cross
        examining Cuffy regarding horizontal gaze nystagmus (4 R.R. at 51);

    17. Directing defense counsel's cross examination of Cuffy (4 R.R. at 54);

    18. Refusing to allow the defense to take Downer on voir dire prior to
        testifying about alcohol "tolerance" (4 R.R. at 73);
    19. Defining reasonable doubt (4 R.R. at 143, 145); and

   20. Stating "Well, it really doesn't matter what you thought, does it?" when
        defense counsel attempted to state on the record the circumstances under
        which State's Exhibit 1 was admitted (4 R.R. at 166).

   As the court of appeals noted, the "Court of Criminal Appeals has expressly

reserved the question of whether a judge's comments can exhibit a bias to such a

                                         13
de[c]ree as to constitute fundamental error." (citing Brumit, 206 S.W.3d 639, 644-
45 (Tex. Crim. App. 2006)).

   Additionally, Judge Harmon holds the dubious distinction of being the only
Harris County Court at Law judge to have a blanket policy of rejecting all

negotiated agreements in DWI cases that would refer a criminal defendant to the
'DIVERT Program." Rhodes v. State, 357 S.W.3d 796 (Tex. App.—Houston [C*
Dist.] 2011, no pet.). Judge Harmon is also the only Harris County Judge to
display a MADD Plaque in a Harris County courtroom. Simpson v. State, 447
S.W.3d 264 (Tex.App—Houston [C' Dist.] 2013, pet. ref d).

      These two notable positions demonstrate that Judge Harmon has a bias

against DWI defendants in general. And when those positions are viewed in light
of the 20 enumerated biased actions in the instant case, it is clear Judge Harmon

was biased against Mrs. Barfield. Although the individual instances of conduct

complained of, standing alone, might not require reversal of this cause, the
cumulative effect of such conduct was to deny Mrs. Barfield a fair trial and the

effective assistance of counsel. Bethany, 814 S.W.2d at 456.

       Any system of government that incorporates within its guarantees the idea of
 ordered liberty necessarily recognizes and appreciates the necessity of providing a

 process to litigate and resolve allegations of criminal conduct. Id. at 462. Under
 our system of constitutional government, the ultimate aim of such a process must

                                         14
be fundamental fairness. Id. In pursuit of this aim, we rely on an adversarial

system to produce just results. Id. Where a trial judge abandons his position as a

neutral arbiter and takes on the role of an advocate, this system cannot function and

fairness is lost. Id. See also State v. Franklin, 'ill S.E.2d 449 (1985) (holding

that the presence of 10 to 30 MADD demonstrators wearing MADD buttons

operated to violate appellant's fair trial). Mrs. Barfield was denied a fair trial

before an impartial judge.

      Sixth Question: Did the Court of Appeals err in holding that
      that the trial court's error in defining reasonable doubt in the
      jury charge did not cause actual harm to appellant's rights? (4
      R.R. at 143)(C.R. at 187).

      Trial counsel objected to the inclusion of a reasonable doubt definition. (4

R.R. at 143). The trial judge overruled the objection, and instructed the jury as

follows: "A 'reasonable doubt' is a doubt based on reason and common sense after

a careful and impartial consideration of all the evidence." (C.R. at 187).

      The Court of Criminal Appeals has held that a judge should not define

reasonable doubt without an agreement of the parties. Paulson v. State, 28 S.W.3d

570, 573 (Tex. Grim. App. 2000). The Fourteenth Court of Appeals previously

held that providing the definition complained of in this case was error. Adkins v.

State, 418 S.W.3d 856 (Tex. App.—Houston [14th Dist.] 2013, pet refd).

However, the Adkins Court held the error harmless. Id. Similarly, the Court of

Appeals in the instant case found the error harmless.
                                         15
       Mrs. Barfield respectfully requests that this Honorable Court to find that this

error is not harmless. First, the definition provided is insufficient to define

reasonable doubt. As the Paulson Court stated: The first definition [i.e., the

definition provided in the instant case] is useless. It is like saying "A white horse is

a horse that is white." Paulson, 28 S.W.3d at 572. However, the Paulson Court

failed to recognize that Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App.

1991), did not contain three separate definitions of reasonable doubt, but rather a

holistic definition that was composed of more than a single sentence. The second

sentence of the Geesa instruction states: "It is the kind of doubt that would make a

reasonable person hesitate to act in the most important of his own affairs." Ibid.

The two sentences must be read together; by providing only the first definition, the

trial judge authorized the jury to convict on a degree of proof below that required

by the Due Process Clause of the Fourteenth Amendment. Cage v. Louisiana, 498

U.S. 39, 41 (1990). That is why the Fifth Circuit provides the following definition:

       A "reasonable doubt" is a doubt based upon reason and common
       sense after careful and impartial consideration of all the evidence in
       the case. Proof beyond a reasonable doubt, therefore, is proof of such
       a convincing character that you would be willing to rely and act upon
       it without hesitation in making the most important decisions of your
       own affairs.'




' Fifth Circuit 2012 Criminal Jury Instructions, Sec. 1.05, pg. 12. (Emphasis supplied).


                                                16
Simply stated, once the trial judge undertakes the task of defining reasonable

doubt, he must do so correctly. That was not done in Mrs. Barfield's case.

      Seventh Question: Is error in defining reasonable doubt in the
      jury charge structural error? (2 R.R. at 22, 34, 54-55)(4 R.R. at
       143)(C.R. at 187).

       The United States Supreme Court has made it clear that failure to adequately

instruct a jury on the reasonable doubt standard is "structural error," i.e., error that

is not subject to a harm analysis. Sullivan v. Louisiana, 508 U.S. 275, 282 (1993).

Since the erroneous definition of reasonable doubt in this case presents structural

error, reversal is required.

       The court of appeals recognized that a trial judge errs by including a

reasonable doubt instruction in the jury charge. However, the court found the error

was harmless xxn&QX Almanza v. State, 686 S.W.2d 157 (Tex. Grim. App. 1985)

       In this case, the trial judge said: "...I'll also give the jury a legal definition

of what beyond a reasonable doubt means." (2 R.R. at 22). After visiting with

several veniremembers regarding their prior jury service, the trial judge continued:

       Your decision as a juror] is one you will never forget. It is one that
       will always be upon the records of Harris County, Texas. It is a
       decision that concerns this individual that you've not seen before, will
       not see again. It's a decision you can never change. It's a decision that
       I cannot change. And I would submit to you that's what beyond a
       reasonable doubt means. In the interest of time and the lunch hour I
       am not going to read you-all the rather lengthy legal definition but
       when it shows up in the court's charge I think you will understand and
       agree it means the same thing that I've been talking to you-all about.
       (2 R.R. at 34).
                                           17
          As can be seen from these quotations, the trial judge twice mentioned that he

would be providing a reasonable doubt definition in the court's charge. The trial

judge provided a nonsensical reasonable doubt definition—the "you'll never forget

your decision" definition. Counsel has seen and reviewed all manner of reasonable

doubt definitions, e.g., "it must be such doubt as would give rise to a grave

uncertainty,"^ "what is required is not an absolute or mathematical certainty, but a
moral certainty,"^ "the mere possibility that the defendant may be innocent will not

warrant an acquittal upon the ground of reasonable doubt,"'* etc., but has never run

across the "you'll never forget your decision" definition. Had such a definition

been given to the jury in Mrs. Barfield's jury charge, any appellate court would

have rejected it as being vague and falling below the requirements of the Due

Process Clause. Clearly then, the remarks by Judge Harmon cannot serve to render

the error in the instant case harmless.


          The Adkins Court also noted that reasonable doubt was discussed by the

State as the highest standard in our legal system and made clear that the State bears

the burden of proving guilt beyond a reasonable doubt. However, in the instant

case, the State defined reasonable doubt in the negative:

^ Cage, supra.

^ Ibid.

^Abram v. State, 35, S.W.389, 390 (Tex. Crim. App. 1896).

                                             18
       I want to talk to you guys about the burden of proof, cause it's my
       burden to prove to you at trial today. That is called beyond a
       reasonable doubt. Now, we can't define beyond ~ I can't define
       beyond a reasonable doubt to you, but what I can tell you is what it is
       not. Beyond a reasonable doubt does not mean that I prove this case to
       you beyond all doubt in the world. It does not mean that I prove it to
       you one hundred percent, because if I could prove it to you one
       hundred percent you would have been a witness and I would have
       called you to the witness stand. It's not an impossible burden to meet.
       (2 R.R. at 54-55).

By defining reasonable doubt in the negative, the State lessened its burden.

Accordingly, the State's voir dire cannot serve to render the error harmless.^
       One factor raised but not discussed in the opinion by the court of appeals is

whether declaring the error harmless would encourage the trial judge to repeat the

error with impunity. The Court of Criminal Appeals stated twenty-five years ago

that an appellate court when conducting a harm analysis "should not focus on the

propriety of the outcome of the trial [but] [i]nstead an appellate court should be

concerned with the integrity of the process leading to the conviction. Harris v.

State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).

       The error in the instant case arose from the same court and the same judge in

Adkins. After having already declared the error harmless in Adkins, if this

Honorable Court does so again in this case, the trial judge will feel emboldened to



^ Mrs. Barfield's trial counsel covered the various levels of proof beginning with reasonable
suspicion and ending with reasonable doubt. (2 R.R. at 103-08).

                                              19
continue committing error by defining reasonable doubt in his jury charges with

the knowledge that the error will be implicitly sanctioned on appeal.

                              P R AY E R F O R R E L I E F


      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this

Honorable Court grant this Petition for Discretionary Review. Following the grant

of review. Petitioner prays that the judgment of the Court of Appeals be reversed.

Petitioner's conviction be reversed, and the case remanded the case for a new trial.

                                               Respectfully submitted.




                                               Isl Brittany Carroll Lacayo
                                               B R I T TA N Y C A R R O L L L A C AY O
                                               Texas Bar No. 24067105
                                               212 Stratford St.
                                               Houston, Texas 77006
                                               Telephone: (713) 504-0506
                                               Facsimile: (832) 442-5033

                                               AT T O R N E Y F O R P E T I T I O N E R




                                          20
                           C E R T I F I C AT E O F S E R V I C E


        I hereby certify that a true and correct copy of the above and foregoing was

delivered via facsimile on June 17, 2015 to the following persons:

Devon Anderson
District Attorney
Harris County District Attorney's Office
Appellate Division
1201 Franklin Street Suite 600
Houston, Texas, 7002
Telephone: (713) 755-5826
Facsimile: (713) 755-5809

Lisa McMinn
State Prosecuting Attorney
P. O . B o x 1 3 0 4 6

Austin, Texas 78711
Telephone: (512) 463-1660
Facsimile: (512) 463-5724

                                                 /s/ Brittany Carroll Lacavo
                                                  B R I T TA N Y C A R R O L L L A C AY O




                                            21
                      C E R T I F I C AT E O F C O M P L I A N C E


      This petition complies with Tex. R. App. P. 9.4 because it was computer-

generated and contains 4,459 words.


                                               Isl Brittany Carroll Lacayo
                                               B R I T TA N Y C A R R O L L L A C AY O




                                          22
A P P E N D I X




      23
                                                                                                                            Page 1




^ LexisNexis*
                                                         25 of 42 DOCUMENTS


                             LISA ANN BARFIELD, appellant v. THE STATE OF TEXAS, Appellee

                                                          NO. 14-i3-00518-CR


                          COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                                       2015 Tex. App. LEXIS 3251



                                                       April 2,2015, Opinion Filed

PRIOR HISTORY; [* 1 ] On Appeal from the County                         doubt in the jury charge; (8) appellant was harmed by
Criminal Court at Law No. 2, Harris County, Texas. Tri                  inclusion of ["'2] the definition; and (9) the trial court's
al Court Cause No. 1714161.                                             judgment should be modified to remove the notation of a
Barfield v. State, 2012 Tex. App. LEXIS 5408 (Tex.                      blood-alcohol content level as no such level was proven.
App. Houston 14th Dist., July 10,2012)                                  We modify the trial court's judgment to remove the
                                                                        blood-alcohol content notation and affirm the judgment
                                                                        as so modified.
C O U N S E L : F o r A P P E L L A N T: C h a r l e s F. B a i r d ,
AUSTIN, TX; Eusebio Pastrano, HOUSTON, TX.                              I. Background

                                                                            Appellant was arrested for suspected DWI on Octo
For STATE: Dan McCrory, HOUSTON, TX.
                                                                        ber 18, 2010. Prior to her arrest, three separate individu
                                                                        als, Paul Jolivet, Dennis Clark, and John Stewart, called
JUDGES: Panel consists of Justices Boyce, Jamison,
                                                                        9-1-1 to report concerns regarding her driving. Record
and Donovan.
                                                                        ings of the 9-1-1 calls were played for the jury. Jolivet
                                                                        also testified at trial, stating that around 5:30 p.m., he
O P I N I O N B Y: M a r t h a H i l l J a m i s o n
                                                                        observed appellant driving on a highway when she ap
                                                                        peared "pretty intoxicated" and was "bobbing and lean
OPINION
                                                                        ing over" within her vehicle. He further explained that
     Appellant Lisa Ann Barfield appeals from her con                   her erratic driving, zigzagging, tailgating, and "hitting
viction for driving while intoxicated (DWI). A jury                     [the] brakes pretty hard" led other drivers to honk their
found her guilty and assessed punishment at ninety days'                horns and clear a path for her. Jolivet was concerned that
confinement and a $1,000 fine, both of which were pro                   appellant was about to cause "a tragedy, an accident."
bated for one year. In nine issues, appellant contends (1)
                                                                            Clark testified that he observed appellant driving in
the trial court erred in denying her motion for continu
                                                                        stop-and-go traffic; when appellant was stopped, her
ance; (2) her trial counsel was ineffective in failing to
                                                                        body was leaned forward over the steering wheel, but
object to evidence of extraneous offenses; (3) counsel                  when she pressed the accelerator, [*3] her body would
was ineffective in offering evidence of appellant's invo
                                                                        lean back. According to Clark, appellant's eyes appeared
cation of her right to coimsel and failing to object to the             to be closed. He called 9-1-1 because it appeared to be
use of that invocation as direct evidence of guilt; (4)
                                                                        "inevitable that she was going to hit somebody." He fur
counsel was ineffective in failing to object to testimony
                                                                        ther stated that other vehicles were avoiding appellant
regarding appellant's first trial; (5) the trial judge erred in         and she was being followed by two tow trucks. Clark
displaying a Mothers Against Drunk Driving (MADD)                       described her as being "under the influence of some
plaque in the courtroom; (6) appellant was denied a fair
trial because the trial judge was not impartial; (7) the                thing, whether it be alcohol or pills." Stewart did not
trial court erred by providing a definition of reasonable               testify at trial, but he informed the 9-1-1 operator that
                                                                                                                   Page 2
                                             2015 Tex. App. LEXIS 3251, *



appellant was "all over the freeway," appeared to be in       must have made the wrong selection regarding appel
toxicated, and was forcing people off the road. He was        lant's eyes.
concerned appellant was going to kill someone with her            A video taken at the station also was admitted into
driving.                                                      evidence. In the video, appellant repeatedly refuses to
      Officer Kaleal Johns responded to the call from dis     perform a breath test or any sobriety tests, and she re
patch and located appellant's vehicle stopped at a red        peatedly requests her attorney, including by name. Ap
light. Johns pulled behind appellant's vehicle, turned on     pellant speaks slowly but coherently [*6] in the video.
his lights and siren, and used a loudspeaker to repeatedly    She states that she does not trust the police in Harris
instruct appellant to pull to the side of the road. Appel     County and that she believed she would be charged re
lant, however, continued to drive until she reached an        gardless of how she performed on any of the tests. The
other red light. At that point, Johns exited his car,         video is time stamped as beginning at 7:51 p.m., approx
knocked on appellant's window, and instructed her to roll     imately two hours and twenty minutes after she was re
the window down. Johns said that appellant just looked        ported to be driving erratically, and the person in the
at him with glassy, red, bloodshot eyes. He instructed her    video attempting to administer the tests also states the
again to roll ["'4] down the window, and when she failed      time as the video begins.
to do so, he instructed her to open her door. When she
                                                                   In her testimony, appellant denied having consumed
failed to follow that instruction as well, Johns opened the
door. He said that a smell of alcohol "saturat[ed]" the       any alcoholic beverages on the day she was arrested. She
interior of the vehicle and he detected it on her breath as   explained that she suffered from chronic back pain as
                                                              well as certain psychological disorders, and as a result,
well. He asked her if she was okay, but she just looked at
                                                              she had been prescribed several medications, although at
him "like she was confused or dazed." He instructed ap
                                                              the time of her arrest she had been unmedicated for about
pellant to place her vehicle in park, but she again failed    a month due to a lapse in medical insurance. She further
to comply so he put the car in park himself. Johns then       described several sources of stress that she was under at
placed appellant in the back of his police car to await the   the time of her arrest, including that her husband was
arrival of additional officers. He stated that appellant
                                                              working overseas and she had two exchange students
became belligerent while they waited.
                                                              living with her and her son. She denied having been at a
     Officer Joel Cuffy testified that when he arrived on     restaurant before her arrest and stated she was distracted
the scene, he observed that appellant's eyes were red and     by a telephone call during her drive and had reached to
glassy and she had a strong odor of alcohol on her            the floorboard at one point to pick up papers that [*7]
breath. Further according to Cuffy, appellant initially       had fallen. She further recalled a tow truck "herding" her
denied having consumed any alcoholic beverages but            and keeping her from the exit she wanted to take. She
subsequently admitted to consuming four glasses of Mer-       denied that she permitted Cuffy to perform any sobriety
lot while at a restaurant shortly before driving. Cuffy       tests on her.

performed two field sobriety tests on appellant: the hori           This appeal stems from the second trial in this case.
zontal gaze nystagmus test (HON) and the one-leg stand
                                                               Following the first trial, appellant was convicted by a
test. During the HGN test, Cuffy noted the presence of
all six positive ["*5] indicators for intoxication, while     jury, but the trial court granted her motion for a new trial.
                                                              While the motion stated numerous grounds including
three of four positive indicators were observed during the    ineffective assistance of counsel and the fact the jury was
one-leg stand. Based on his observations, Cuffy conclud
ed that appellant was intoxicated.                            permitted to hear evidence of appellant's requests for
                                                              counsel, the trial court did not specify the grounds on
     Officer Donald Downer also responded to the scene        which a new trial was granted. As will be discussed more
and detected a strong odor of alcohol coming from appel       fiilly below, at the beginning of the second trial, appel
lant. After Downer transported appellant to a police sta      lant's counsel requested a continuance based on the fact
tion, she refused breathalyzer and blood testing. Based       counsel had received injuries in a recent accident and
on the odor and his interaction with appellant, during        was taking pain medication. The trial court denied the
which she repeated certain questions and at times failed      motion. Following the second trial, appellant was found
to comprehend what was being said to her. Downer con          guilty and sentenced to ninety days' confinement and a
cluded that appellant was intoxicated. Downer addition        $1,000 fine, both of which were probated for one year.
ally testified that he and Johns prepared the offense re
port, which he acknowledged contained some errors,            n. Assistance of Counsel
such as noting her eyes were clear when he recalled them           In issues two through four, appellant contends that
being bloodshot. He explained that the report is complet      she received ineffective assistance of counsel because
ed using drop-down computer menus and he or Johns             her trial counsel failed to object to the introduction [*8]
                                                                                                                    Pages
                                               2015 Tex. App. LEXIS 3251, ♦



of a prior DWI conviction and another unadjudicated             These notes included references to prior arrests of appel
extraneous offense, offered evidence that appellant in          lant for DWI and evading arrest. When defense counsel
voked her right to counsel and failed to object to the use      realized that these notes were part of State's Exhibit 1, he
of that invocation as direct evidence of guilt, and failed      objected, explaining that he had not realized at the time
to object to testimony regarding appellant's first trial.       the exhibit was admitted that it included the notes. The
                                                                trial court did not rule on the objection. Instead, the
A. Standard of Review                                           judge called the jury back into the courtroom and asked
                                                                 them if they wanted to listen to the 9-1-1 tapes again.
     An appellate court reviews the effectiveness of             The foreman responded, "Yes, sir," and the tapes were
counsel according to the two-pronged test set forth in
                                                                played in the courtroom.
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Under this standard, a               Appellant contends that admission of this extraneous
defendant must (1) demonstrate that trial counsel's per         offense evidence (i.e., the dispatcher notes in Exhibit 1)
formance was deficient and fell below an objective              violated the Confrontation Clause of the Sixth Amend
standard of reasonableness, and (2) "affirmatively prove        ment to the United States Constitution as well as provi
prejudice by showing a reasonable probability that, but         sions of the Texas Rules of Evidence. See U.S. Const.
for counsel's unprofessional errors, the result of the pro      Amend. VI; Tex. R. Evid. 404(b), 609; Crawford v.
ceeding would have been different." Thompson v. State,          Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
9 S.W.3d 808, 812 (Tex. Crim. App. 1999).                       177 (2004); Wood v. State, 260 S.W.3d 146, 148-49
                                                                (Tex. App.—Houston [1st Dist.] (Tex. App.—Houston
    Review of a trial counsel's performance is highly
                                                                [1st Dist.] 2008, no pet.). But even assuming appellant is
deferential, as there is a "strong presumption that coun        correct that admission of the notes violated these provi
sel's conduct [fell] within the wide range of reasonable        sions and counsel therefore was ineffective in not timely
professional assistance; that is, [appellant] must over         objecting to the notes, appellant has not on this record
come the presumption that, under the circumstances, the         demonstrated that counsel's allegedly inadequate repre
challenged action might be considered sound trial strate        sentation prejudiced her case. See Thompson, 9 S.W.3d
gy." Strickland, 466 U.S. at 689. Ordinarily, trial counsel     at 812 (explaining that second prong of Strickland re
should be afforded an opportunity to explain his or her
                                                                quires appellant to affirmatively prove prejudice by
actions, and in the absence of such opportunity, [*9] an
                                                                showing a reasonable probability that, [*11] but for
appellate court should not find deficient performance           counsel's unprofessional errors, the result of the proceed
unless the challenged conduct was so outrageous that no
                                                                ing would have been different). Appellant does not cite
competent attorney would have engaged in it. Goodspeed          any place in the record that demonstrates the jury ever
V. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
                                                                actually saw the dispatcher notes. The notes were not
To establish ineffective assistance of counsel based on a       mentioned before the jury either when Exhibit 1 was
failure to object, appellant must demonstrate that the trial    admitted into evidence and the tapes were originally
court would have committed harmful error in overruling
                                                                played or when the tapes were again played in the court
the objection had trial counsel objected. DeLeon v. State,      room during jury deliberations. The record clearly shows
322 S.W.3d 375, 381 (Tex. App.-Houston [14th Dist.]             that at no point were the notes mentioned before the jury,
2010, pet. refd). The appellant bears the burden of prov        much less emphasized to them. See Motilla v. State, 78
ing by a preponderance of the evidence that counsel was         S.W.3d 352, 356 (Tex. Crim. App. 2002) (noting that
ineffective, and any allegations of ineffectiveness must        whether the State emphasized error can be a factor in
be firmly founded in the record. Thompson, 9 S.W.3d at          harm analysis). Appellant has failed to meet her burden
813.
                                                                of demonstrating prejudice firmly founded in the record.
                                                                See McFarland v. State, 928 S.W.2d 482, 500 (Tex.
B. Extraneous Acts
                                                                Crim. App. 1996); Young v. State, 425 S.W.3d 469 (Tex.
     Appellant first asserts that her counsel was ineffec       App.—Houston [1st Dist.] 2012, pet. refd). Consequent
tive in failing to timely object to the admission of evi        ly, we overrule appellant's second issue.
dence concerning extraneous offenses allegedly commit
ted by appellant. This complaint stems from the admis           C. Invocation of Right to Counsel
sion of State's Exhibit 1, which included the tapes of the
                                                                     In her third issue, appellant contends her counsel
9-1-1 calls that were played to the jury. During its delib      was ineffective in offering evidence concerning her re
erations, the jury sent out a note asking for a transcript of   quest for counsel when she was taken into police custody
the 9-1-1 calls. At that time, defense counsel realized that    and in failing to object when this evidence was allegedly
not only did Exhibit 1 include the tape recordings but it       used as direct evidence of guilt. Counsel in fact raised
also included notes that were apparently sent from the 9-
                                                                appellant's invocation of her right to counsel [*12] sev-
1-1 dispatcher to the responding police officers. [*10]
                                                                                                                                      Page 4
                                                             2015 Tex. App. LEXIS 3251, *



eral times during trial, including during opening state                                   for counsel demonstrated that she was sober.
ments, examination of police officers and appellant her                                   Counsel further expressed confusion as to why
self, and closing arguments. The fact of her invocation                                   the police did not [*14] allow appellant access to
was also raised in the playing of the video of appellant                                  her attorney. Appellant explained in her testimo
made at the police station and during the prosecutor's                                    ny that she requested her attorney "to help ex
d i r e c t e x a m i n a t i o n o f O f fi c e r D o w n e r a n d c r o s s -          plain my rights to me and [because she] didn't
examination of appellant. Appellant particularly points                                   feel safe or trusting in the environment [she] was
out that counsel elicited and did not object during the                                   in with the police." She further explained that
following exchange between defense counsel and Officer                                    part of her distrust of the officers came from the
D o w n e r.                                                                              fact that they had arrested her when she was not
                                                                                          intoxicated. In closing argument, defense counsel
               Q: And you stated, I think, she is intoxi                                  further highlighted the refusal by police officers
          cated because she keeps asking for an at                                        to allow her access to an attorney as evidence that
          torney, right?                                                                  the police were not conducting their investigation
                                                                                          appropriately.
               A: That's just one of the signs, cause
          we [would] be talking and then she'd                                         Appellant contends that reversal is warranted based
          bring it up every five seconds or so.                                    on Winn v. State, 871 S.W.2d 756 (Tex. App.—Corpus
                                                                                   Christi 1993, no writ); according to appellant, Winn is
                                                                                   indistinguishable from the present case. We disagree.
Appellant urges that in this exchange, her request for                             The defense counsel in Winn testified during a habeas
counsel was used as direct evidence of her guilt.                                  corpus hearing that he offered a videotape which includ
                                                                                   ed the defendant invoking his right to counsel because he
      The admission of evidence that a criminal defendant
                                                                                   thought it supported the defendant as a witness, although
invoked his or her right to counsel after receiving Miran
                                                                                   he did not explain specifically how he thought it would
da warnings for the purpose of proving guilt may violate                           do so. Id. at 764. The court of appeals reviewed the tape
the defendant's constitutional right to due process. See
                                                                                   and could not discern any way in which it could have
Griffith v. State, 55 S.W.3d 598, 604-07 (Tex. Crim.                               helped the defendant or been a part of a sound trial strat
App. 2001); Hardie v. State, 807 S.W.2d 319, 320-22                                egy. Id. The court actually did [*15] not mention the
(Tex. Crim. App. 1991); see also Lajoie v. State, 237                              invocation of counsel on the videotape as being prob
S.W.3d 345, 352-53 (Tex. App.-Fort Worth 2007, no
                                                                                   lematic but instead noted that the defendant's use of pro
pet.) (holding that although admission of evidence re                              fanity, refusal to answer questions, attitude, and other
garding invocation of counsel before Miranda warnings                              statements did not help the defendant's credibility. Id.
may not have violated constitutional rights, such ["'13]
evidence was more prejudicial than probative and should                            Additionally, the introduction of the videotape in that
                                                                                   case was only one of several allegations regarding coun
not have been admitted). Here, Downer's testimony indi                             sel's performance that led the court of appeals to con
cated appellant requested counsel both before and after                            clude the defendant received ineffective assistance of
receiving Miranda warnings.                                                        counsel. Id. at 764-65. In contrast, defense counsel in the
    This case, however, does not present a simple failure                          present case had a clear strategy that supported use of the
of defense counsel to object to the State's use of a de                            videotape and other references to appellant's request for
fendant's invocation of counsel as evidence of guilt. De                           counsel.^ See Cacy v. State, 901 S.W.2d 691, 700 (Tex.
fense counsel here used the repeated invocation of coun                            App.—Houston [14th Dist.] 1995, pet. refd) (rejecting
sel to support two of the defense's main theories: (1) ap                          suggestion that failure to object to evidence of defend
pellant was not in fact intoxicated at the time of her de                          ant's invocation of her right to counsel could not have
tention, as evidenced by the fact she was able to calmly                           had a strategic basis).
and coherently request counsel by name on the vide
otape; and (2) appellant's request for counsel and refusal                                2 Although not cited by appellant, we also find
to perform the sobriety tests at the station demonstrated                                 Ex parte Skelton, 434 S.W.3d 709 (Tex. App.~
her distrust of Houston police, as also stated on the vide                                San Antonio 2014, pet. refd), to be distinguisha
otape." See Strickland, 466 U.S. at 689 (explaining that                                  ble for similar reasons. In Skelton, a habeas cor
review of a trial counsel's performance is highly deferen                                 pus proceeding, defense counsel offered incon
tial and includes a strong presumption that the chal                                      sistent explanations regarding why he failed to
lenged action may have been sound trial strategy).                                        object to evidence regarding the defendant's re
                                                                                          quest for counsel. Id. at 721. This, along with the
           1 In opening statements, defense counsel sug                                   fact that the evidence contradicted the defendant's
           gested that appellant's calm and coherent requests                             position that she had been open and cooperative
                                                                                                                      Page 5
                                                 2015 Tex. App. LEXIS 3251,*



           with police officers, [*16] led the court of ap       states in relevant part: "A finding or verdict of guilt in
           peals to conclude that there was no strategic val     the former trial must not be regarded as a presumption of
           ue to not objecting under the circumstances. Id. at   guilt, nor may it be alluded to in the presence of the jury
           720-4.                                                that hears the case on retrial of guilt." Tex. R. App. P.
                                                                 21.9(d). This rule addresses references to a "finding or
                In contrast, the introduction of evidence and    verdict of guilt" and does not address the admissibility of
           failure to object here were integral to the de
                                                                 a mere reference to a prior trial. Accordingly, appellant
           fense's strategy. Furthermore, it is unclear how      has not demonstrated that the trial court would have
           defense counsel could have gotten these points
                                                                 erred in overruling an objection to this testimony had one
           across without including the requests for counsel.    been made. We therefore overrule her fourth issue.
           The videotape is replete with appellant's requests,
           and it was in relation to her requests for counsel    III. Motion for Continuance
           and refusal to perform sobriety tests that she
           spoke of her distrust of Houston police.                    In her first issue, appellant contends the trial court
                                                                 erred in denying her motion for continuance. On the day
     Once the appellant used her request for counsel de          trial began, defense counsel appeared, announced "not
fensively, the State then had a right to suggest an alterna      ready for trial," and requested a continuance.' Counsel
tive interpretation of the repeated requests, such as put
                                                                 explained that he had been in a bicycle accident and sus
forth in the excerpt from Downer's testimony above. Cf.          tained head trauma which required staples on his scalp.
Szmalec v. State, 927 S.W.2d 213, 217 (Tex. App.~                He also had injured his sternum and right clavicle, which
Houston [14th Dist] 1996, pet. refd) (holding state could
                                                                 apparently restricted his arm movements. He fiuther stat
impeach defendant with his own silence once the issue            ed that he was "feeling light-headed" and was on medica
was raised defensively). Moreover, it was the repetitive-        tion for pain as well as a cold. He concluded that "I can
ness of the requests, and not the nature thereof, that           not effectively represent [*19] my client with these inju
Downer suggested as indicative of intoxication. Also,            ries and my sickness." The trial court denied the motion
defense counsel may have been reluctant to object to this        for a continuance and trial began.
testimony because he didn't want to bring further atten
tion to Downer's suggestion the request for counsel was
                                                                        3 Appellant also filed a written motion for con
evidence of guilt. Counsel [*17] reasonably may have                    tinuance on the same day. This was apparently
concluded that Downer's seemingly dismissive attitude
                                                                        appellant's first request for a continuance.
toward appellant's rights supported the defensive theory
that appellant did not agree to the sobriety tests because            We review a trial court's denial of a motion for con
she distrusted Houston police. Under these circumstanc           tinuance for an abuse of discretion. See Janecka v. State,
es, appellant has failed to meet her burden of establishing      937 S.W.2d 456, 468 (Tex. Crim. App. 1996); see also
that her counsel performed deficiently in presenting and         Rosales v. State, 841 S.W.2d 368, 372-73 (Tex. Crim.
failing to object to evidence of her invocation of the right     App. 1992) (granting or denying continuance based on
to counsel. See Thompson, 9 S.W.3d at 813. Consequent            the illness of counsel is within the trial court's discre
ly, we overrule her third issue.                                 tion). To establish that the trial court abused its discre
                                                                 tion by denying the motion for continuance, appellant
D . R e f e r e n c e s t o F i r s t Tr i a l                   must show actual prejudice to her defense resulted from
                                                                 counsel's representation. See Janecka, 937 S.W.2d at
     In issue four, appellant contends trial counsel was
                                                                 468; Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.
ineffective in failing to object to testimony concerning         Crim. App. 1995). Examples of prejudice include unfair
the prior trial. During an exchange between defense
                                                                 surprise, an inability to effectively cross-examine the
counsel and Clark, one of the witnesses who called 9-1-          State's witnesses, and the inability to elicit crucial testi
1, counsel first objected to Clark's reference to the earlier    mony from witnesses. See Janecka, 937 S.W.2d at 468.
trial, but when the objection was overruled, counsel used        Texas courts have concluded that no prejudice is shown
Clark's testimony from the prior trial to impeach his re         when a defendant is ably represented throughout trial by
sponse to a question. Counsel referred to "testimony             substitute counsel. See Miller v. State, 537 S.W.2d 725,
from February 28,2012."                                          726 (Tex. Crim. App. 1976); State v. Doyle, 140 S.W.3d
       As explained above, to establish ineffective assis        890, 894 (Tex. App.-Corpus Christi 2004, pet. refd).
tance of counsel based on a failure to object, an appellant      However, appellant has not cited and research has not
must demonstrate that the trial court would have commit          revealed any Texas cases specifically addressing a situa
ted harmful error in overruling an objection. See DeLeon,        tion such as here, where defense counsel demonstrated
322 S.W.3d at 381. The [*18] only authority appellant            recent injuries and expressed concern as to whether he
cites is Texas Rule of Appellate Procedure 21.9, which           could [*20] provide effective representation, yet a prop-
                                                                                                                                Page 6
                                               2015 Tex. App. LEXIS 3251, *.



er motion for continuance was denied. Nonetheless, it           tive assistance of counsel claims, relating to failure to
appears clear under Janecka, et. al, that appellant still       object to the evidence of extraneous offenses or testimo
must show specific prejudice to her defense resulted            ny mentioning the first trial in this case and the offer of
from denial of the motion for continuance. 937 S.W.2d at        evidence concerning her invocation of the right to coun
468.                                                            sel. For the same reasons that we found these assertions
                                                                did not establish ineffective assistance of counsel, we
       The most closely analogous case appears to be            find that they do not establish prejudice from the denial
Jimenez v. State, in which defense counsel learned short
                                                                of the motion for continuance. Moreover, they do not
ly before trial that he was required to have cancer sur         establish that appellant was substantially deprived of
gery as soon as possible. 717 S.W.2d 1 (Tex. Crim. App.         counsel.
 1986). The trial court denied counsel's motion for con
tinuance, but the court of appeals reversed and ordered a            Next, appellant points to a brief exchange between
new trial because the defendant had been forced to stand        her counsel and the judge, which occurred during voir
trial "represented by counsel with mind distracted by           dire proceedings. The exchange came immediately after
medical problems who must hurry through the trial in            a member of the jury panel was questioned by the judge
order to have carcinoma surgery when scheduled." Id. at         and the judge determined not to strike the venireperson
2 (quoting court of appeals). The Court of Criminal Ap          for cause. The exchange went as follows:
peals then reversed the court of appeals, holding that no
actual prejudice was shown in the record because the                     [Defense Counsel]: I need to make a re
defendant was ably represented through trial by counsel.               quest for extra strikes under the law that
Id. Although not directly on point because, unlike here,               [venireperson] was caused [sic] for a per
counsel in Jimenez did not allege any current disability,              emptory strike. Now I'll have to use my
this case does generally support ^he rule that simply al               own strikes to strike him. I'd actually like
leging a physical problem is not enough to support [*21]               an extra strike.

reversal; prejudice must be shown in the record. See                           THE COURT: Denied. [*23]
Janecka, 937 S.W.2d at 468.'
                                                                            [Defense Counsel]: I have to perfect
         4 In Stevens v. State, the Court of Criminal Ap               the record. Now I'm going to have to
         peals considered an appeal from a defendant who               strike [another venireperson] because [ve
         was put to trial without his attorney despite an af           nireperson] is getting one of my strikes,
         fidavit from the attorney and a certificate from a            so [the other venireperson] is going to get
         doctor, stating, in substance, that the attorney was          l e f t o ff .
         unable to appear due to illness. 128 Tex. Crim.
                                                                               T H E C O U R T: I d i d n ' t h e a r w h a t
         531, 532-33, 82 S.W.2d 148, 148-49 (1935). The
         defendant had been unable to hire substitute
                                                                       [you're] saying. Let's proceed.
         counsel, though he consulted all three attorneys
         in town. Id. The Court held that, under those cir
         cumstances, the trial court abused its discretion in       Appellant suggests that this exchange, and particu
         refusing to continue the case and thereby substan      larly the judge's final reaction, demonstrated defense
         tially deprived the defendant of counsel. Id., 128     counsel may have been "slurring his speech, not speak
         Tex. Crim. at 533-34, 532-33, 82 S.W.2d at 149.        ing clearly or having difficulty judging his volume due to
         The circumstances of the present case are distin       his head injury." She then cites a Florida appellate opin
         guishable from the facts in Stevens because the        ion in which the court held that the trial court abused its
         record here does not establish that appellant was      discretion in denying a motion for continuance when
         substantially deprived of counsel.                     unreflited facts established that defense counsel's physi
                                                                cal condition from a recent head injury prevented him
      We note at the outset that appellant's motion for new
                                                                from adequately representing his client. Jackson v. State,
trial did not allege any prejudice resulted from counsel's
                                                                464 So.2d 1181, 1182 (Fla. 1985).^ We do not agree,
condition or otherwise attempt to develop a record as to
                                                                however, that this brief, ambiguous exchange presented
counsel's performance at trial and the effect, if any, of his   unrefuted facts or otherwise established that appellant's
medical condition on that performance. See Jimenez, 111
                                                                counsel was impaired, much less that his physical condi
S.W.2d at 2 (noting defendant did not file a motion for
                                                                tion prejudiced appellant's defense. See Janecka, 937
new trial or otherwise develop a record regarding coun
                                                                S.W.2d at 468. Moreover, there is no showing on this
sel's performance). [*22] In her appellate briefing on
                                                                record that counsel was unable to effectively cross-
this issue, appellant principally makes the same argu
                                                                examine the State's witnesses or otherwise develop cru-
ments that are discussed above concerning her ineffec
                                                                                                                   Page?
                                              2015 Tex. App. LEXIS 3251, ♦



cial testimony through [*24] other witnesses. See id           assuming the refusal to remove the plaque constituted
Accordingly, we overrule her first issue.                      error, any such error was harmless in that case, applying
                                                               the harm analysis standard for nonconstitutional error.
       5 In Jackson, in addition to the motion for con         2014 Tex. App. LEXIS 6527, [WL] at *5-7; also
       tinuance, defense counsel made several refer            Tex. R. App. P. 44.2(b) (stating that any nonconstitution
       ences to his medical problems and how they were         al error that "does not affect substantial rights must be
       adversely affecting his performance during the          disregarded").
       course of jury selection and during the trial itself.
       464 So.2d at 1182. At one point during the pro               Appellant contends that the analysis in Simpson is
                                                               distinguishable because she is asserting here that display
       ceedings, counsel made an oral motion to with
       draw based upon his inability to effectively assist     ing the plaque violated her constitutional rights, whereas
                                                               the defendant in Simpson only alleged violations [*26]
       his client but the motion was denied. Id. Appel
                                                               of statutory law and the Code of Judicial Conduct. 2014
       lant also filed a motion for new trial that present
                                                               Tex. App. LEXIS 6527, 2014 WL 2767126, at *5. Con
       ed evidence from counsel and his physician that
                                                               stitutional error requires a significantly different harm
       counsel's medical condition impaired his ability
       to effectively represent his client. Id.                analysis. See Tex. R. App. P. 44.2(a) ("If the appellate
                                                               record in a criminal case reveals constitutional error that
                                                               is subject to harmless error review, the court of appeals
IV. MADD Plaque
                                                               must reverse a judgment of conviction or punishment
     In her fifth issue, appellant contends the trial Judge    unless the court determines beyond a reasonable doubt
 erred in displaying a plaque in the courtroom that had the    that the error did not contribute to the conviction or pun
 acronym MADD on it, because it violated the rule that a       ishment.").
judge should maintain an attitude of impartiality and not           We note at the beginning of our analysis that appel
 impress upon jurors any view that he or she may hold          lant did not raise any constitutional arguments concern
 regarding the case at hand, citing Anderson v. State, 83
 Tex. Crim. 261, 265-66, 202 S.W. 944, 946 (Tex. Crim.         ing the MADD plaque in the trial court, including in her
                                                               motion for new trial. As can be seen in the excerpt
 App. 1918). Defense counsel requested the plaque be
                                                               above, defense counsel did not offer any specific reason
 removed during a conference on motions in limine, as
                                                               for requesting removal of the plaque and specifically did
follows:
                                                               not mention any constitutional rights as grounds necessi
                                                               tating the plaque's removal. See Tex. R. App. P. 33.1(a)
          [Defense Counsel]: Okay. Second mo
       tion in limine. Judge, we ask you to take               (requiring that to preserve error, a complaint must state
                                                               the grounds for the ruling that the complaining party
       down your Mother[s] Against Drunk
                                                               seeks from the trial court with sufficient specificity to
       [*25] Drivers' plaque that's sitting behind             make the court aware of the complaint, unless the specif
       your bench. The label MADD is clearly                   ic grounds are apparent from the context); Resendez v.
       visible over the picture frame that you put
                                                               State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (dis
       in front of it. And, as an officer of the
                                                               cussing Rule 33.1(a) and stating that "a party must be
       court, from standing and sitting in the jury
                                                               specific enough so as to 'let the trial judge know what he
       box, it's clearly visible that you have a
                                                               [*27] wants, why he thinks himself entitled to it, and do
       Mother[s] Against Drunk Drivers' plaque                 so clearly enough for the judge to understand him at a
       behind your chair.
                                                               time when the trial court is in a proper position to do
            T H E C O U R T: D e n i e d .                     something about it,"' quoting Lankston v. State, 827
                                                               S.W.2d 907, 909 (Tex. Crim. App. 1992)); Saldano v.
                                                               State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (dis
                                                               cussing the policies behind requiring specific objections
    As appellant acknowledges, our sister court recently
                                                               even in regards to constitutional error); Tollett v. State,
considered an appeal involving the same trial judge and
                                                               422 S.W.3d 886, 896 (Tex. App.-Houston [14th Dist]
apparently the same plaque. See Simpson v. State, No.          2014, pet. refd) (holding defendant waived contention
01-12-00380-CR, 2014 Tex. App. LEXIS 6527, 2014                that trial court committed constitutional error by not spe
WL 2767126, at *6-10 (Tex. App.-Houston [1st Dist.]
                                                               cifically raising constitutional issue in the trial court).
June 17, 2014) (mem. op., not designated for publica
tion),/7gr. refd, 447 S.W.3d 264 (Tex. Crim. App. 2014).            Appellant argues, however, that the judge's display
The defendant in Simpson argued that displaying the            of the plaque violated her constitutional rights to be tried
plaque violated statutory law and judicial conduct rules       by an impartial tribunal and may have given the jury an
and improperly influenced the jury. 2014 Tex. App.             impression of his views. Except for complaints involving
LEXIS 6527, [WL] at *5. The First Court held that even         ftmdamental constitutional requirements, all other com-
                                                                                                                 Pages
                                             2015 Tex. App. LEXIS 3251, *



plaints based on a violation of both constitutional and
statutory rights are waived by failure to comply with
Rule 33.1. Mendez v. State, 138 S.W.3d 334, 338 (Tex.               Blue, 41 S.W.3d at 134-35 (Mansfield, J., concur
Crim. App. 2004). Fundamental errors include violations             ring).
of rights that are either "absolute" or "not forfeitable."
                                                                The display of the MADD plaque in the present case
Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App.
                                                             was not of the same magnitude as the judge's comments
2014). Such errors need not be preserved to be raised on     in Blue and does not rise to the level of fundamental er
appeal, and sometimes do not require a harm analysis in      ror. See Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim.
order to necessitate reversal of a conviction. See id;
Cain V. State, 947 S.W.2d 262, 264 (Tex. Crim. App.          App. 2000) (holding judge's comments did not rise to
                                                             such a level as to vitiate the presumption of innocence or
1997).^                                                      the impartiality of the jury as in Blue)', see also Chan-
                                                             thakoummane v. State, No. AP-75,794, 2010 Tex. Crim.
       6 Appellant makes her constitutional error asser
       tion only in arguing whether a harm analysis          App. Unpub. LEXIS 249, 2010 WL 1696789, at ♦ll
                                                             (Tex. Crim. App. Apr. 28, 2010) (not designated for pub
       [♦28] is required, but her arguments are equally
                                                             lication) (holding judge's comments "did not go so far as
       applicable to whether preservation was required.      to taint the presumption of innocence"). The only infor
       We will broadly construe her brief as alleging
                                                             mation in this record regarding the plaque is defense
       fundamental constitutional error that is exempt
                                                             counsel's representation that the plaque was visible from
       from the requirements of rule 33.1.
                                                             the jury box and had the acronym "MADD" on it. No
    In Blue V. State, 41 S.W.3d 129 (Tex. Crim. App.         mention of the plaque was made in front of the jury. The
2000), the trial judge commented to the venire panel,        record does not contain any images of the plaque or its
among other statements, that the defendant had seriously     location in the courtroom. The plaque was clearly not
considered entering into a plea agreement. 41 S.W.3d         specific to this defendant, as were the judge's comments
130, 132. A plurality of justices found this conduct to be   in Blue, and there is no suggestion that it expressly refer
fundamental error as it "tainted," "damaged," and "vitiat    enced guilt or innocence [^30] in any way. We decline
ed" the presumption of innocence.7(i. at 132, 135. The       to hold that the refusal to remove the MADD plaque was
court held this error required no objection and performed    fundamental error requiring reversal even though not
no harm analysis.®                                           properly preserved for appellate review. We therefore
                                                             overrule appellant's fifth issue.
       7 A fifth justice would have held that the judge's
       comments in their entirety violated the right to an   V. Impartiality of Judge
       impartial judge. Blue, 41 S.W.3d at 135 (Keasler,         In issue six, appellant contends the trial judge com
       J., concurring in the judgment only).                 mitted a litany of actions that demonstrated bias against
        8 As described in a concurring opinion.
                                                             her and denied her a fair trial.^ Due process requires a
                                                             neutral and detached hearing body or officer. Brumit v.
                 The trial judge['s] first statement
                                                             State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (cit
               told the jury, essentially, the State
               and appellant were discussing how             ing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct.
                                                             1756, 36 L. Ed. 2d 656 (1973)). However, not every
               appellant would plead but appel
               lant was having difficulty in decid           complaint about a judge or the conduct of a trial impli
                                                             cates constitutional due process protections; indeed,
               ing how to plead. Furthermore, the            "most matters relating to judicial disqualification [do]
               statement told the jury it was, in
                                                             not rise to a constitutional level," and "matters of kin
               the opinion of the trial judge, ap
                                                             ship, personal bias, state policy, remoteness of interest,
               pellant's fault for the delay in try          would seem generally to be matters merely of legislative
               ing the case and that everyone                discretion." Caperton v. A.T. Massey Coal Co., Inc., 556
               would save time if appellant
                                                             U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208
               would simply plead (presumably
                                                             (2009) (quoting respectively FTC v. Cement Institute,
               guilty). [♦29] The second state               333 U.S. 683, 702, 68 S. Ct. 793, 92 L. Ed. 1010, 44
               ment told the jury a defense attor
                                                             F.T.C. 1460 (1948), and Tumey v. Ohio, 273 U.S. 510,
                ney may have an obligation to pre            523, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159,
                sent false testimony. The third
                                                             5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927)); 5^^
                statement told the jury that, in the
                                                             also Avilez v. State, 333 S.W.3d 661, 673-74 (Tex. App.-
               judge's opinion, very few defend              -Houston [1st Dist] 2010, pet. refd) (quoting Caperton).
                ants, over a forty-year period, had
                been found not guilty.
                                                                                                                                                Page 9
                                                                    2015 Tex. App. LEXIS 3251, *



           9 The specific actions she complains of include:                                 partiality of the trial court); see also Luu, 440 S.W.3d at
           refusing to remove the MADD plaque, denying                                      128 (discussing and following Brumit).
           the motion for continuance and threatening coun
                                                                                                 Appellant merely asserts in conclusory fashion [*33]
           sel with contempt if he mentioned the ruling to
                                                                                            that the trial judge demonstrated general bias against
           the jury, questioning two venirepersons, "coerc
                                                                                            DWI defendants and specific bias against her and lists
           ing" counsel to release a witness from subpoena,
                                                                                            multiple alleged demonstrations of bias with little or no
           "directing" or "curtailing" [*31] counsel's exam
           ination of certain witnesses, refusing to grant a                                analysis thereof, leaving the court to speculate as to why
                                                                                            she perceives the cited occurrences to be objectionable.
           mistrial after a witness mentioned the first trial,
                                                                                            See Luu, 440 S.W.3d at 129 (rejecting contention trial
           refusing to allow the defense to publish appel
                                                                                            judge demonstrated bias that amounted to fundamental
           lant's mugshot to the jury, permitting the State to
                                                                                            error when appellant "offer[ed] no discussion whatsoever
           use evidence without having given the defense
                                                                                            to support his conclusory assertions that the judge was
           notice, refusing to allow counsel to take two wit
           nesses on voir dire prior to testifying about scien                              outwardly biased against him"). Our review of the rec
                                                                                            ord, including the pages appellant cites, does not reveal
           tific evidence, defining reasonable doubt in the
                                                                                            obvious bias. Most of appellant's citations are to rulings
          jury charge, stating "Well, it really doesn't matter                              of the court that appellant does not contend were errone
           what you thought, does it?" when counsel at
                                                                                            ous. There is certainly no clear expression of bias in the
           tempted to state on the record the circumstances
           under which State's exhibit 1 was admitted, and                                  rulings or comments. A few of her citations are to rulings
                                                                                            that are the subject of other issues on appeal, including
           maintaining a blanket policy of rejecting all nego                               denial of the motion for continuance, refosal to grant a
           tiated agreements in DWI cases that would refer a
                                                                                            mistrial after a witness mentioned the prior trial, defining
           criminal defendant to the "DIVERT" Program.
                                                                                            reasonable doubt in the jury charge, and refusing to re
      Absent a clear showing of bias, we presume a trial                                    move the MADD plaque ffom the courtroom.'® As dis
court's actions were not so tainted. Brumit, 206 S.W.3d at                                  cussed elsewhere in this opinion, none of these consti
645. To reverse a judgment based on improper comments                                       tutes error. Continued exhibition of the MADD plaque,
or conduct by the judge, we must find (1) that judicial                                     [*34] however, requires further analysis for bias.
impropriety occurred and (2) prejudice probably resulted.
Id.; Luu V. State, 440 S.W.3d 123, 128-29 (Tex. App.-                                               10 The reasonable doubt definition is addressed
Houston [14th Dist.] 2013, no pet.). Our review encom                                               in the next section of this opinion.
passes the entire record. Luu, 440 S.W.3d at 129. Re                                            As our sister court did in Simpson, we find the dis
marks by the judge during trial that are critical or disap
                                                                                            play of the MADD plaque to be analogous to a judge's
proving of, or even hostile to counsel, the parties, or their                               extra-judicial statements regarding a category of offense
cases, ordinarily do not support [*32] a challenge for                                      or punishment. 2014 Tex. App. LEXIS 6527, 2014 WL
bias unless they reveal an opinion derived from an extra
                                                                                            2767126, at *9-10." Courts considering those types of
judicial source. Id. When no extrajudicial source is al                                     statements have concluded that the mere fact a judge has
leged, such remarks demonstrate bias only if they reveal
such a high degree of favoritism or antagonism as to                                        expressed such views does not, taken alone, demonstrate
                                                                                            that the judge acted with bias against a particular defend
have made fair judgment impossible. Id.
                                                                                            ant in a particular trial. See Rosas v. State, 16 S.W.3d
      We begin by noting that appellant does not cite any                                   771, 774-75 (Tex. App.-Houston [1st Dist.] 2002, no
place in the record where she made a request, objection,                                    pet); Chastain v. State, 667 S.W.2d 791, 794 (Tex.
or motion based on the trial judge's alleged bias. See Tex.                                 App.—Houston [14th Dist.] 1983, writ refd) ("It is pre
R. App. P. 33.1(a) (requiring a timely request, objection,                                  sumed that a judge will base his judgment upon the facts
or motion to preserve a complaint for appellate review).                                    as they are developed at the trial."). As the Simpson court
She specifically did not file a motion to recuse the judge                                  aptly states: "While the display of the plaque could be
or seek a new trial on the basis of bias. Accordingly, we                                   viewed as evidence the trial judge dislikes drunk driving,
may reverse her conviction on this ground only if we                                        it was not a comment on this particular defendant's guilt
fi n d t h a t s u c h b i a s r e s u l t e d i n f u n d a m e n t a l e r r o r. S e e   or innocence and, therefore, did not demonstrate bias
Mendez, 138 S.W.3d at 341-42; Luu, 440 S.W.3d at 128.                                       against Simpson." 2014 Tex. App. LEXIS 6527, 2014
The Court of Criminal Appeals has expressly reserved                                        WL 2767126, at *10. It therefore does not overcome the
the question of whether a judge's comments can exhibit                                      presumption that the trial judge conducted the trial
bias to such a decree as to constitute fundamental error.                                   properly, much less demonstrate fundamental error. See
See Brumit, 206 S.W.3d at 644-45 (declining to decide                                       Brumit, 206 S.W.3d at 645; Mendez, 138 S.W.3d at 341-
whether an objection is required to preserve error of this                                  42; Simpson, 2014 Tex. App. LEXIS 6527, 2014 WL
nature and instead holding that the record did not reflect                                  2767126, at *10.
                                                                                                                                             Page 10
                                              2015 Tex. App. LEXIS 3251, *



                                                                           instruction at issue created a presumption of spe
         11 As appellant does here, the defendant in                       cific intent under the facts of the case. Id. at 280-

         Simpson made display of the MADD plaque the                       82. Here, the trial court merely included a defini
         basis of both an issue concerning possible impact                 tion of reasonable doubt that has been described

         [*35] on the jury as well as an issue complaining                 as useless; it did not create a presumption on in
         of Judicial bias. 2014 Tex. App. LEXIS 6527,                      tent. Paulson V. State, 28 S.W.3d 570, 572 (Tex.
         2014 WL 2767126, at *5-10.                                        Crim. App. 2000).

    Lastly, regarding appellant's contention that the trial          We begin our analysis by noting that the definition
judge has a policy of rejecting all negotiated agreements       submitted by the trial court in this case was the first sen
in DWI cases that would refer a criminal defendant to the       tence in paragraph four of the reasonable doubt defini
"DIVERT" Program and that this policy demonstrates              tion crafted by the Court of Criminal Appeals in Geesa v.
bias, we have previously held directly to the contrary.         State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), but
This position does not in fact establish the judge has a        subsequently withdrawn [*37] by the Court in Paulson
bias against DWI defendants. See Rhodes v. State, 357           V. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
S.W.3d 796, 800-01 (Tex. App.-Houston [14th Dist]               The Paulson court harshly criticized certain portions of
2011, no pet.). Accordingly, we overrule appellant's sixth      the Geesa definition; as to the particular language at is
issue.                                                          sue here, however, Paulson simply described it as "use
                                                                less" and circular. Paulson, 28 S.W.3d at 572 (comparing
VI. Reasonable Doubt Instruction                                the first sentence of paragraph four to the statement "[a]
                                                                white horse is a horse that is white."). Thus, it appears
      In issues seven and eight, appellant contends that the
                                                                that the Paulson court viewed the language at issue here
trial court erred in providing the jury with a definition of
                                                                as less likely to cause harm than some other parts of the
reasonable doubt and that this error prejudiced her case.
                                                                Geesa definition. See Adkins, 418 S.W.3d at 866-67 (in
The definition in question stated "A 'reasonable doubt' is
                                                                terpreting Paulson in this fashion).
a doubt based on reason and common sense after a care
ful and impartial consideration of all the evidence in the           Turning to the record in this case, we first observe
case." The trial court overruled appellant's timely objec       that the State's case against appellant was strong. The
tion to the definition. In Adkins v. State, we found sub        State presented five eyewitnesses at trial, including three
mission of the same definition in a DWI trial in this same      police officers and two individual citizens, who each
trial court to be error. 418 S.W.3d 856, 863-66 (Tex.           concluded that appellant was intoxicated at the time of
App.-Houston [14th Dist.] 2013, pet. refd). The State           h e r d e t e n t i o n . T h e o f fi c e r s o b s e r v e d h e r c l o s e a t h a n d
offers no reason, and we discern no reason, for reconsid        immediately after her detention, and the citizens ob
ering that holding in this case.                                served her while she was driving. The State further pre
                                                                sented a tape recording of a third citizen's 9-1-1 call in
    Having found error in submission of the charge,             which he likewise concluded appellant was driving while
[*36] we must now analyze that error for harm. Ngo v.           intoxicated. Each witness recounted specific observa
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).              tions that led them to their conclusion. It was also estab
Because appellant properly objected to the definition, we
                                                                lished that appellant [*38] refused to submit to a breath
will reverse if the defendant suffered "some harm" to his
                                                                alyzer test as well as other sobriety tests. See Bartlett v.
rights. See id^^ In making this determination, we exam
                                                                State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (ex
ine the jury charge as a whole, the state of the evidence,
                                                                plaining that refusal to submit to a breath test is relevant
argument by counsel, and any other relevant information         in establishing guilt as it tends to show a consciousness
revealed in the record. Hutch v. State, 922 S.W.2d 166,
                                                                of guilt). Although defense counsel developed a few in
171 (Tex. Crim. App. 1996); Adkins, 418 S.W.3d at 866.
                                                                consistencies between the statements and the police re
The record must show that appellant suffered "actual"
                                                                ports, and appellant denied the allegations during her
not merely "theoretical" harm. Almanza v. State, 686
                                                                testimony, the evidence overall was strongly indicative
S.W.2d 157, 174 (Tex. Crim. App. 1985); Adkins, 418
                                                                of guilt. See, e.g., Langham v. State, 305 S.W.3d 568,
S.W.3d at 866.
                                                                582 (Tex. Crim. App. 2010) (identifying the strength of
                                                                the State's case as a relevant factor in a harm analysis).
         12 Appellant asserts that a failure to properly in
         struct on reasonable doubt constitutes structural             Next, we note that the court's charge appears to have
         error that requires reversal and is not subject to a   otherwise properly instructed the jury on the burden of
         harm analysis. However, the only authority she         proof, the elements of the offense, and the presumption
         cites for this proposition, Sullivan v. Louisiana,     of innocence. See Adkins, 418 S.W.3d at 867 (noting
         508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182       propriety of remainder of charge in finding error in de-
         (1993), is readily distinguishable. In Sullivan, the   fming reasonable doubt harmless). Lastly, we examine
                                                                                                                 Page 11
                                             2015 Tex. App. LEXIS 3251,*



comments made by the judge, prosecutor, and defense
counsel in discussing the burden of proof with the Jury.       VII. Blood-Alcohol Content
Before trial began, the judge offered a somewhat ram
                                                                   In issue nine, appellant asserts that the trial court's
bling statement regarding the importance of the jury's
determination but also stressed that appellant must be         judgment should be modified to remove the notation of a
                                                               blood-alcohol content level as there was no evidence
presumed innocent and that the State had the burden to
                                                               establishing any such level. Specifically, the description
prove her guilt beyond a reasonable doubt. [*39] The           in the judgment of the offense for which appellant was
prosecutor told the venire panel that he had the burden of     convicted reads "DWI 2ND OFFENDER BAG .08," but
proof but could not define beyond a reasonable doubt for       no evidence was admitted showing appellant had a spe
the jury. He then stated.
                                                               cific blood-alcohol content as she refused such testing.
                                                               The State concedes the propriety of this requested cor
        Beyond a reasonable doubt does not                     rection.
       mean that I prove this case to you beyond
       all doubt in the world. It does not mean                       Under appropriate circumstances, a court of appeals
       that I prove it to you one hundred percent,             may modify a trial court's judgment to correct an error.
       because if I could prove it to you one                  Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
       hundred percent you would have been a                   27-28 (Tex. Grim. App. 1993); see also French v. State,
       witness and I would have called you to                  830 S.W.2d 607, 609 (Tex. Grim. App. 1992) (holding
       the witness stand. It's not an impossible               that "an appellate court has authority to reform a judg
       burden to meet.                                         ment to include an affirmative finding to make the record
                                                               speak the truth when the matter has been called to its
                                                               attention by any source"). Accordingly, we modify the
This soliloquy does not appear to be particularly helpful      trial court's judgment to strike the term "BAG .08" from
or particularly damaging to the jury's understanding of        the offense.
the burden of proof. Defense counsel offered more clari
ty in closing argument, telling jurors that "[r]easonable      VIII. Conclusion
doubt... is the highest burden in the land." He then gen
                                                                   We modify the trial court's judgment to remove the
erally described the preponderance-of-the-evidence and         notation regarding appellant's blood-alcohol content.
clear-and-convincing burdens of proof and emphasized
that beyond a reasonable doubt was an even harder              Having overruled all of appellant's other issues, we af
                                                               firm the judgment as so modified. [*41]
standard to meet.
                                                                      /s/ Martha Hill Jamison
     Considering the charge as a whole, the strength of
the State's evidence, and the comments made by counsel                Justice
and the judge, we find that the trial court's error in defin
                                                                      Panel consists of Justices Boyce, Jamison, and Do
ing reasonable doubt in the jury charge did not cause          n o v a n .
actual harm to appellant's rights. See Ngo, 175 S.W.3d at
                                                                 Publish - TEX. R. APP. P. 47.2(b).
743. Accordingly, [*40] we overrule appellant's seventh
and eighth issues.
