Reversed and Remanded and Majority and Concurring Opinions filed May 5,
2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00855-CR

                      ALISHA MARIE DRAKE, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CR0922

                      MAJORITY OPINION

      Following a jury trial, appellant Alisha Marie Drake was found guilty of the
second-degree felony offense of sexual performance by a child, younger than
fourteen years of age. Because the trial judge’s actions and remarks during the
selection of the jury prevented a fair and impartial trial, we reverse and remand for
a new trial.
                                   BACKGROUND

      On February 24, 2012, Jason Grant sexually assaulted his fourteen-month-
old granddaughter at his house. Drake videotaped the assault on a cell phone and
her voice could be heard on the video. When the police interviewed Drake, she
admitted that she used her phone to videotape the assault. Drake told the police that
Grant made her do it.

      On May 17, 2012, Drake was charged by indictment with sexual
performance by a child, younger than fourteen years of age. See Tex. Penal Code §
43.25. Drake pleaded not guilty to the allegation and the case proceeded to a trial
by jury on August 26, 2013. During the voir dire examination of the jury panel, the
trial judge introduced herself to the panel and provided a brief overview of the jury
selection process and trial. The trial judge then allowed the prosecutor, Mr. Adam
Poole, to begin asking the panel questions.

      Mr. Poole began by asking the jurors about potential schedule conflicts and
then started explaining that the case involved the charge of sexual performance by
a child. The following exchange then occurred:

      Mr. Poole:          The Judge already mentioned this, but we are going to be
                          talking about some personal things, and it might be some
                          things that you don’t feel comfortable talking about in
                          front of everybody. If you do, just make sure I get your
                          number, say, “I would like to say it in private” or “I
                          would like to say it to the Judge.” We are going to wait
                          until both sides do our questioning and then we will call
                          you up and then you will just have to talk about it in front
                          of a few of us.
                          Before I explain to you -- the charge is sexual
                          performance of a child. Before I explain what that is,
                          because there is quite a bit of explanation to that, the
                          short answer is we are talking about creating child
                          pornography. So you can imagine that if this is a trial

                                          2
                about creating child pornography, there is a good chance
                that if you are on the jury, you are going to have to look
                at child pornography. The immediate -- all at once I saw
                simultaneous heads shaking. Nobody wants to do that,
                and there is nobody that’s going to do that without being
                affected by it. And, again, that’s okay. It’s expected. But
                if you are on this jury, you have to be able to do it. You
                cannot be excused just because it affects you and it
                horrifies you to see that. If so, like the Judge said, we
                would have no one on that jury. So this is a really sincere
                question, is that: Are you physically and emotionally
                incapable of doing that?
The Court:      Mr. Poole, don’t ask that question because it doesn’t
                matter. I’m not going to excuse anybody for it.
Mr. Poole:      Okay.
                Yes, sir? Thank you for saving me with a question. Juror
                No. 48?
Juror No. 48:   Yes. I just want to say one thing as far as my belief in
                God, as far as watching any kind of child pornography
                for a judicial or whatever kind of court. I mean, I cannot
                do that, so whatever you have to do, you just have to do
                it.
Mr. Poole:      Are you saying it’s a religious reason?
Juror No. 48:   Yes. And as far as any kind of case, any kind of child
                pornography or any of that, I mean, I will close my eyes,
                I will not allow my eyes to look at anything like that,
                period. So whatever you have to do, you just have to do
                it.
The Court:      Here is the thing you have got to understand. Assuming -
                - sometimes an accusation is made and the person didn’t
                commit a crime at all. They are wrong. The crime wasn’t
                committed. Sometimes an accusation was made and a
                crime was committed but it was a different person that
                committed it. There are different things that happen. But
                if you believe that a crime was committed and a child
                was hurt as a consequence, that child needs 12 people
                who have got it in them to come in here and look at the

                               3
                         evidence and do what - - if you believe in God, God
                         wants you to protect the children.
                         ...
                         And if this happened, then there is a child who needs 12
                         adults to be big enough and strong enough to watch what
                         they had to go through. So if that kid had to go through
                         that, then adults can watch a film.
                         ...
                         So if it grosses you out, then you can take it out on the
                         person in punishment because it can’t possibly gross you
                         out more than it grossed out that child. So that’s what my
                         God tells me.
                         ...
                         So you want to find out what I will do? You will find out
                         what I will do. If you get on this jury and I order you to
                         look at something, you will get yourself locked up. So
                         you want to find out what my God will tell me to do?
                         Let’s test it, Buddy. Let’s test it.
         Juror No. 48:   Your Honor, I’m one of Jehovah’s Witnesses and I
                         believe that Jehovah God is a Supreme Judge and it is not
                         in my place to judge anyone else or to have, for that
                         matter, for them to be - -
         The Court:      All right. I understand that. We have Jehovah’s
                         Witnesses all the time. But you know what? If you get
                         picked on this jury, you get picked on this jury, and
                         Jehovah can visit you in the jail.
         Juror No. 48:   Okay. Then - -
         The Court:      Have a seat, sir.
         Juror No. 48:   I guess they have to visit me.
         The Court:      All right. Arrest him. Take him into custody. Take him
                         into custody right now. I’m not playing. See you later.

The trial judge immediately had Juror No. 48 arrested in front of the entire jury
panel.


                                          4
      Subsequently, another juror inquired about the situation with Juror No. 48,
stating “I believe the Judge said you are looking for people to be fair. You have a
room full of 65 people. If someone has really strong feelings . . . .” The trial judge
cut the juror off and explained the difficulty in selecting a jury for this type of case.
The trial judge stated that she used to be a sex crimes prosecutor and that she “had
a room this full on these kind of cases and not had enough to get to 12.” The trial
judge then went into a detailed history of high-profile cases she presided over in
the past to illustrate why getting twelve jurors was so challenging. The trial judge
concluded by stating the following:

      I know it seems like crazy, but what we don’t want to do is, what we
      hate to do is when we bring this many people in and it wasn’t enough
      and we have to start over again the next day with a whole other group
      of people. If we could let people go, we would let people go, but we
      are not. And I’m not playing, and I don’t care if anybody likes it or
      not. That’s what we have to do and we are going to do that to pick this
      jury.

      Drake’s trial counsel did not object to the trial judge’s remarks or the
decision to arrest Juror No. 48. Mr. Poole resumed voir dire and the trial judge did
not further address the situation with Juror No. 48. Mr. Poole did not ask any more
questions regarding the jury’s bias or feelings toward child pornography. Similarly,
Drake’s trial counsel also did not ask the jury any questions regarding child
pornography. Voir dire concluded the following day and trial began. The jury
returned a verdict of guilty on August 30, 2013.

                         ANALYSIS OF APPELLANT’S ISSUES

      In her first two issues, Drake contends that the trial court committed
fundamental error by arresting a prospective juror in front of the jury panel and by
expressing its personal opinions and commenting on the punishment that should be


                                           5
imposed.1 Drake asserts that the trial judge’s actions and remarks during voir dire
deprived her of a fair and impartial jury during trial.

      Error Preservation

      Generally, to preserve error, a defendant must make a timely and specific
objection and obtain a ruling. Tex. R. App. P. 33.1(a). Absent an objection, a
defendant waives error unless the error is fundamental—that is, the error creates
egregious harm. Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d); Villareal v. State, 116 S.W.3d 74, 85 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). This exception applies where the error is so
egregious and created such harm that the defendant has not had a fair and impartial
trial. Ganther, 187 S.W.3d at 650 (citing Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984)). In that instance, reversible fundamental error occurs and
can be raised for the first time on appeal. See id. Because Drake failed to make
timely and specific objections during voir dire, the only way her claim survives on
appeal is if the trial court’s actions and comments constitute fundamental error.

      Sixth Amendment Right to an Impartial Jury

      The Sixth Amendment to the United States Constitution guarantees a trial
before an “impartial jury.” U.S. Const. amend. VI. A defendant’s right to a trial
before an impartial jury is ingrained within our fundamental precepts of justice.
Armstrong v. State, 897 S.W.2d 361, 368 (Tex. Crim. App. 1995) (citing Irvin v.
Dowd, 366 U.S. 717, 721 (1961)); see also In re Murchison, 349 U.S. 133, 136
(1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”). The
voir dire process is designed to effectuate a defendant’s right to a fair trial by
insuring, to the fullest extent possible, that the jury will be intelligent and
      1
          Although Drake addresses these issues separately in her brief, we consider them
together in our analysis.

                                           6
impartial. Armstrong, 897 S.W.2d at 368; Salazar v. State, 562 S.W.2d 480, 482
(Tex. Crim. App. [Panel Op.] 1978). “The importance in selecting a jury cannot be
overestimated in our judicial system since both the State and defendant have an
interest in assembling a jury free of bias and prejudice.” Price v. State, 626 S.W.2d
833, 835 (Tex. App.—Corpus Christi 1981, no pet.). Thus, we must determine
whether the trial judge’s actions and remarks cut off the vital flow of information
from the jury to the court in such a way that it prevented Drake from having a fair
and impartial trial. See id.; United States v. Rowe, 106 F.3d 1226, 1230 (5th Cir.
1997).

      In this case, Juror No. 48 stated that his religious beliefs prevented him from
viewing certain evidence. “The Bill of Rights of the Texas Constitution addresses
the importance of religious beliefs and the significance of the jury system.” Price,
626 S.W.2d at 835. “The religious beliefs of all Texas citizens have not only been
guaranteed by the Constitution of this State, but our founding fathers who
established this nation did so in the same premise.” Id. (explaining the importance
of jurors being able to serve on juries without being disqualified because of their
religious beliefs).

      The issue of jurors expressing their religious beliefs during jury selection
was briefly addressed by the Court of Criminal Appeals in Nelson v. State, in
which a trial judge criticized and excused a minister for stating that he could not
judge another person’s guilt. 661 S.W.2d 122, 124 (Tex. Crim. App. 1983). The
majority held that the defendant did not preserve error; however, in a concurrence,
Justice Teague pointed out that jurors being patronized for their religious views
was a recurring event throughout the State that could not be condoned in our
judicial system. Id. at 124−25 (Teague, J., concurring). The concurring justice
further stated:

                                         7
      The religious beliefs of the citizens of the State of Texas, whatever
      they might be, are far too important to be subjected to mockery,
      derision, ridicule, or criticism by any member of the trial judiciary of
      this State . . . I pray that this is the last time I will ever read in an
      appellate record, or elsewhere, where a citizen of this State has been
      castigated by a member of the trial judiciary of this State because of
      his religious beliefs. If what happened in this cause happens again,
      and a conviction results and is appealed to this Court, I will be the
      first to vote for a reversal of that conviction, solely for that reason and
      no other.

Id. at 125. Unfortunately, the facts of our case demonstrate that this problem
happened again.

      Fundamental Error

      Drake contends that the trial judge’s decision to arrest Juror No. 48 and her
comments on the case had a chilling effect on the jury that prevented a meaningful
and substantive voir dire, which ultimately precluded Drake from having a fair and
impartial trial. We agree.

      The voir dire process is designed to insure, to the fullest extent possible, that
an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty
assigned to it. Salazar, 562 S.W.2d at 482. The purpose of the voir dire
examination is to expose any bias or interest of the prospective jurors which might
prevent full consideration of the evidence presented at the trial. Price, 626 S.W.2d
at 835. The term “voir dire” literally means “to speak the truth.” Id. (quoting
Black’s Law Dictionary 1412 (5th ed. 1979)). “When one member of the panel
does indeed speak the truth and exposes a personal bias, the interests of justice are
served.” Price, 626 S.W.2d at 835. We presume that potential jurors answer
truthfully the questions of voir dire. Rowe, 106 F.3d at 1229. However, this
presumption does not apply when jurors are given reason to fear reprisals for
truthful responses. Id.

                                           8
      Punishing a juror for speaking truthfully and expressing his bias has a
chilling effect on the jury’s ability to respond affirmatively to questions asked
during voir dire. See Price, 626 S.W.2d at 835 (stating that the trial judge’s
comment on juror’s religious beliefs “cannot help but chill the honest exchange of
information so necessary in the selection of a fair and impartial jury”). We find
support in Rowe,2 a case in which a juror told the judge that she could not be fair in
a drug case because her brother was an undercover narcotics officer and her father
was a police officer. 106 F.3d at 1228. In retaliation for the juror’s response, the
judge stated that the juror was going to be placed on jury panels in February,
March, and April so that she could “figure out how to put aside [her] personal
opinions.” Id. The exact same encounter occurred between the judge and one other
juror, and resulted in the same threat of punishment. Id. at 1228−29. The Rowe
court held that because the jurors were punished for responding truthfully about
their biases, the trial judge’s actions “cut off the vital flow of information from
venire to court.” Id. at 1230. The court reasoned that the “district court simply lost
any opportunity to explore panel members’ views and educate them” and as a
result it “became impossible for counsel to get the information from potential
jurors necessary for jury selection.” Id.

      The facts of Rowe are analogous to the present case in which the trial
judge’s act of arresting Juror No. 48 chilled the effect of the jury’s ability to
provide truthful responses to questions regarding their potential biases. We cannot
condone the trial judge’s action in this case. A trial judge that holds a juror in
contempt for expressing his religious beliefs defeats the purpose of voir dire and
prevents the honest exchange of information between the court and the jury. Price,

      2
         Although Fifth Circuit precedent is not binding on Texas courts, we recognize that
federal court opinions may be persuasive authority. See Guzman v. State, 85 S.W.3d 242, 249
n.24 (Tex. Crim. App. 2002).

                                            9
626 S.W.2d at 835−36 (“If a trial court discourages prospective jurors from being
truthful, he simultaneously destroys the purpose of the voir dire and erodes the
foundation upon which a fair and impartial jury can be selected.”).

      The State asserts that the trial judge’s act of arresting Juror No. 48 was
proper because the trial judge exercised its discretion to maintain control over the
courtroom. See Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (stating
that the trial court has broad discretion over the process of selecting a jury). The
State contends that Juror No. 48 was disrespectful, disorderly, and “adamant that
he was ready to be arrested.” Although we recognize the trial judge’s broad
discretion over voir dire, nothing in the record demonstrates that Juror No. 48
behaved disrespectfully or was disorderly toward the court. Even if Juror No. 48’s
tone was disrespectful, it is a judge’s role to maintain decorum without resorting to
personal argument. This record reflects that the trial judge engaged Juror No. 48
personally, thereby at least continuing, if not escalating, the angry tone of the
exchange. It certainly cannot be said that Juror No. 48 actually wanted to be
arrested. Instead, Juror No. 48 affirmatively responded to Mr. Poole and the trial
judge’s questions regarding the jurors’ views on child pornography.

      The State directs this court to Villegas v. State, a case in which a juror was
held in contempt during voir dire. No. 04-07-00109-CR, 2008 WL 441755, at *1
(Tex. App.—San Antonio Feb. 20, 2008, no pet.) (mem. op.) (not designated for
publication). In Villegas, the prosecutor asked the jury “[w]hat does a person look
like who has committed child abuse?” Id. A juror stood up and said “[s]omething
like him” and pointed to the defendant. Id. The defense counsel objected, stating
that the juror’s outburst tainted the jury pool. Id. The trial judge found the juror in
contempt and the juror was handcuffed and removed from the courtroom. Id. The
defense counsel again objected to the juror’s outburst and requested a ruling. Id.

                                          10
Another juror then stated “if they look guilty they are guilty” and the defense
counsel again objected and moved for a mistrial. Id. On appeal, the defendant
argued that the jurors’ comments tainted the panel members who ultimately served
on the jury. Id. The court held that the record was “devoid of evidence that any
juror on the panel was prejudiced” and that the trial court did not abuse its
discretion in denying the defendant’s motion for mistrial. Id. at *2−3. We disagree
with the State that Villegas should apply because it is factually distinct.

      First, a juror being held in contempt for saying the defendant looked like a
child abuser is completely different from the present situation, in which Juror No.
48 was held in contempt for expressing his possible bias grounded in religious
beliefs. A trial court has the discretion to arrest a disruptive juror for causing an
outburst during voir dire, but abuses that discretion when it arrests a juror for
speaking honestly about his inability to hear a case impartially. See Rowe, 106
F.3d at 1230.

      Second, in Villegas, the record did not reflect that any juror was prejudiced
or tainted by the arrested juror’s remarks. 2008 WL 441755, at *2. Here, the record
demonstrates that the jury was intimidated into silence by the exchange between
the trial judge and Juror No. 48. After the exchange with Juror No. 48 occurred,
one juror expressed his concern about the situation and was immediately
interrupted by the judge. The trial judge then clearly explained that it would not be
excusing any juror who had biases regarding child pornography. Subsequently, the
discussion on child pornography during voir dire came to a halt and the jurors
remained silent on the issue. After one arrest and a subsequent, similar
admonishment, we can only presume that the members of the panel were “not
fools.” See Rowe, 106 F.3d at 1230. Instead of preserving the impartiality of the
jury, the trial judge was more concerned with the personal argument with Juror No.

                                          11
48 and making sure there were twelve people available to serve on the jury from
that particular panel, regardless of any disqualifying biases regarding certain
evidence. The trial judge went into a lengthy discussion of the difficulty of
selecting a jury based on personal experience with these types of cases. The trial
judge made it very clear that she would not be dismissing any juror with
potentially disqualifying bias against viewing certain types of evidence when she
stated “[i]f we could let people go, we would let people go, but we are not. And
I’m not playing, and I don’t care if anybody likes it or not.” The trial judge’s
comments demonstrate a failure to protect the jury selection process.

      Along with holding the juror in contempt, the trial judge’s comments about
Drake’s case and punishment undoubtedly influenced the jury’s opinion about the
case before it even began. The trial judge stated “if you believe in God, God wants
you to protect the children” and if a “kid had to go through that, then adults can
watch a film.” While arguing with Juror No. 48, the judge also commented on
punishment, stating “if it grosses you out, then you can take it out on the person in
punishment because it can’t possibly gross you out more than it grossed out that
child. So that’s what my God tells me.”

      The Texas Code of Criminal Procedure provides that a judge cannot “at any
stage of the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.” Tex. Code Crim. Proc. art.
38.05. The trial judge must maintain impartiality throughout the entire case. Blue v.
State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.). The Blue court
recognized that the United States Supreme Court has stated, “[i]t is obvious that
under any system of jury trials the influence of the trial judge on the jury is
necessarily and properly of great weight, and that his lightest word or intimation is
received with deference, and may prove controlling.” See id. (quoting Starr v.

                                          12
United States, 153 U.S. 614, 626 (1894)). Here, the trial judge’s comments to the
jury did not reflect impartiality toward Drake’s case. The trial judge also made
improper comments regarding punishment when it told the jury to “take it out on”
Drake during punishment.

      The trial judge’s act of arresting Juror No. 48 combined with her comments
during voir dire rise to the level of fundamental error. Where error defies harm
analysis or the data is insufficient to conduct harm analysis, the error will not be
proven harmless. Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000); see
also Rios v. State, 4 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 1999), pet.
dism’d, improvidently granted, 122 S.W.3d 194 (Tex. Crim. App. 2003) (per
curiam) (“We believe this harm from this error . . . defies analysis, even though we
have been ordered to analyze it and have tried to.”). Because determining what
effect the trial judge’s actions and remarks had on the jury would leave this court
to speculate, Drake does not need to point to specific prejudice. See Rowe, 106
F.3d at 1230 (“Among those basic fair trial rights that can never be treated as
harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.
Defendants need not show specific prejudice from a voir dire procedure that cut off
meaningful responses to critical questions.”) (internal quotations and citations
omitted).

      However, even if Drake was required to show actual harm, the record
reflects that the jury was intimidated by the encounter between the trial judge and
Juror No. 48. After the arrest, a juror stated “I believe the Judge said you are
looking for people to be fair. You have a room full of 65 people. If someone has
really strong feelings . . . .” This statement shows that at least one juror was
concerned about the jury being able to freely share their biases with the court.
When the judge interrupted this juror, it is not surprising that the jury remained

                                        13
silent, fearing that he or she could be arrested for speaking truthfully. See id.
(noting that jury’s silence after judge punished two jurors suggested that jury
feared giving truthful answers).

         We cannot overemphasize the importance of a litigant’s constitutional right
to a trial before an impartial jury. The facts underlying the alleged offense in this
case are horrible. But the the trial judge’s decision to arrest a juror for speaking
truthfully about his bias and the trial judge’s decision to comment on Drake’s case
leave us with no other option but to reverse the conviction. The trial judge’s
actions failed to protect the trial process and deprived Drake of a fair and impartial
trial.

         We sustain Drake’s first and second issues. Because we find these issues
dispositive, we need not reach Drake’s remaining issue.

                                    CONCLUSION

         We hold that the trial judge committed fundamental error. Accordingly, we
reverse the conviction and remand the case for a new trial.




                                        /s/    Ken Wise
                                               Justice



Panel consists of Justices McCally, Brown, and Wise (McCally, J., concurring).
Publish — TEX. R. APP. P. 47.2(b).




                                          14
