Texas Code of Criminal Procedure 38.05 states that In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.@ Tex. C. Crim. Pro. 38.05. But, in order to be grounds for reversal, the court=s remark must be material to the case. Simon v. State, 2006 WL 2771796 (Tex. App.BHous. (14 Dist.)). A defendant=s right is harmed when the judge=s comment Ahad a substantial and injurious effect or influence in determining the jury=s verdict.@ Id. To determine whether the error was harmful, the Court of Appeals in Simon decided that the court must consider everything in the record, and Aask if a reasonable probability exists that the error moved the jury from a state of non-persuasion to one of persuasion beyond a reasonable doubt.@ Id. In Simon, a DWI case, the Court of Appeals found that the even though the trial court did not intend any adverse consequences, his comments could in fact be found to influence the jury toward the State=s

position regarding the Intoxilyzer used to test Simon=s breath. Id. The trial courts comments, taken as a whole, demanded reversal and warranted a new trial.  Id.

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