Alisha Marie Drake v. The State of Texas Appeal from 212th District Court of Galveston County (concurring opinion )

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Reversed and Remanded and Majority and Concurring Opinions filed March 5, 2015. In The Fourteenth Court of Appeals NO. 14-13-00855-CR ALISHA MARIE DRAKE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 12CR0922 CONCURRING OPINION The trial court committed fundamental error by (1) holding a venire panel member in contempt of court when he articulated a religious-based inability to view the graphic evidence in the sexual-performance-of-a-child case; (2) jailing him for such “conduct” in open court before the remainder of the panel; and (3) making charged religious remarks regarding a juror’s role in the process. The fundamental error deprived appellant of a fair and impartial jury trial. I disagree with my colleagues that appellant has shown harm. However, I conclude that in this context harm need not be shown. Thus, I respectfully concur in the disposition and judgment only. /s/ Sharon McCally Justice Panel consists of Justices McCally, Brown, and Wise. (Wise, J. majority). Publish — Tex. R. App. P. 47.2(b). 2

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