Opinion issued December 31, 2013




                                     In The

                             Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                             NO. 01-12-00380-CR
                           ———————————
                      KRISTEN ALEIA SIMPSON, Appellant
                                       V.
                        THE STATE OF TEXAS, Appellee



           On Appeal from the County Criminal Court at Law No. 2
                            Harris County, Texas
                        Trial Court Case No. 1753959



                          DISSENTING OPINION

      A Texas criminal courtroom is to be a sanctuary from interest groups and

agendas. The evidence is what it is and the crimes and offenses are as recited in

the criminal codes.
      The influence of those who may have lobbied for various provisions in those

codes has no place in the courtroom. It falls to the tribunal to assure a fair and

impartial trial of the citizen accused.

      To display behind the trial bench a plaque awarded by one of the most well-

established interest groups in the nation not only fails to keep the interest group at

bay, but also invites others to take notice that, in the judge’s capacity as a public

official, his actions merited the group’s commendation. When that interest group

is Mothers Against Drunk Driving—a group dedicated to the proposition that the

offense for which the accused citizen is being tried in that very courtroom is a very

bad and potentially horrific thing—the sanctuary has been twice defiled: not only

by the agenda of the interest group, but also by the hubris of the judge charged

with the responsibility of assuring a fair and impartial DWI trial.

      That a judge so commended would take pride in such an award is

understandable. But the criminal court judges of Harris County, Texas all have the

benefit of individual private chambers where commendations, books, plaques,

photos, etc. can be displayed. Display of such personal items in what is to be a

hallowed sanctuary of impartial justice bespeaks a fundamental misunderstanding

of the very proprietorship of that public space: it is the people’s courtroom, not an

oversized ante-room of some judge’s chambers.




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      The majority opinion hints that the display of the MADD award may have

been error but, determining that it did not affect Simpson’s substantial rights,

concludes such error, if any, is harmless. Yet, as noted by the majority, “If . . .

there is a ‘grave doubt’ that the result was free from the substantial influence of the

evidence, then the defendant’s substantial rights were affected.” Burnett v. State,

88 S.W.3d 633, 637 (Tex. Crim. App. 2002). “Grave doubt” is the situation in

which, “in the judge’s mind, the matter is so evenly balanced that he feels himself

in virtual equipoise as to the harmlessness of the error.” Id. at 637–38 (quoting

O’Neal v. McAninch, 513 U.S. 432, 433–36, 115 S. Ct. 992 (1995)). 1

      A plaque of commendation from one of the nation’s most well-established

interest groups on display behind the very bench at which a criminal court judge

presides is an imprimatur of that judge by that interest group. The balance of my

equipoise notwithstanding, because my review of the case leads me to believe that



1
      In O’Neal v. McAninch, the United States Supreme Court opined,

      [W]e consider here the legal rule that governs the special circumstance in
      which record review leaves the conscientious judge in grave doubt about
      the likely effect of an error on the jury’s verdict. (By ‘grave doubt’ we
      mean that, in the judge’s mind, the matter is so evenly balanced that he
      feels himself in virtual equipoise as to the harmlessness of the error.) We
      conclude that the uncertain judge should treat the error, not as if it were
      harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and
      injurious effect or influence in determining the jury’s verdict’).

      513 U.S. 432, 435, 115 S. Ct. 992 (1995).

                                              3
the display was error and that it had a substantial influence in determining the

jury’s verdict, I respectfully dissent.




                                               Jim Sharp
                                               Justice


Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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