Dissenting opinion issued March 17, 2011

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00631-CR

01-09-00632-CR

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PHILLIP ABEL HERNANDEZ, Appellant

V.

State of Texas, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

DISSENTING OPINION

          There are times during the course of jury trials that the actions or statements of witnesses, attorneys, or jurors may threaten a fair trial and the presiding judge must carefully instruct the jury to disregard the action or statement so as not to prejudice the proceedings.

          When, however, the “skunk in the box” is of the judge’s very own doing, the notion that all is somehow deodorized or counter-balanced by the boilerplate language of the court’s charge is a hope too far.

          Absent the trial judge’s comment on the evidence, there would be no doubt this defendant received a fair and impartial trial.  I cannot, however, consider the judge’s error in this instance as harmless.  In fact, the response to the jury’s specific inquiry seeking the law on a “single witness” case not only tracked the language of an inapplicable statute but bolstered the victimization of the complainant. Such a written response from the presiding judge cannot be realistically thought not to impermissibly color a jury’s decision.

          The court’s charge and the judge’s note are to be read and evaluated en toto.  To expect, however, that a jury will not ascribe a greater weight to the judge’s own written answer to its specific question (which the majority correctly holds was a comment on the weight of the evidence) than it does to the charge may be a laudable aspiration, but as a practical matter played out in a courtroom in real time is simply not realistic.

          I dissent.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, dissenting.

Publish.  Tex. R. App. P. 47.2(b).