Barfield, Lisa Ann

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.