C AUSE NUMBER __________________

IN THE COURT OF CRIMINAL APPEALS FOR THE S TATE OF TEXAS

THOMAS LLOYD TAUNTON P ETITIONER

v . THE STATE OF TEXAS

PETITON IN TRIAL COURT CAUSE NUMBERS CR

- 12

- 24098, CR

- 13

- 24755 FROM THE 336 TH JUDICIAL DISTRICT COURT OF FANNIN COUNTY,

TEXAS AND THE COURT OF APPEALS FOR THE SIXTH COURT OF APPEALS IN TEXARAKANA, TEXAS CA SE NUMBERS 06

- 14

- 00159

- CR AND No. 06

- 14

- 001 6 0

- CR

P ETITION FOR DISCRETIONARY REVIEW STEVEN R. MIEARS State Bar No. 14025600 211 North Main Bonham, Texas 75418 Tel: 903

- 640

- 4963 Fax: 903

- 640

- 4964 Email: SteveMiears@msn.com

1 | P a g eTABLE OF CONTENTS
TABLE OF CONTENTS

................................ ................................ ............................. 2 INDEX OF AUTHORITIES....................

. ........ ............................................................ 3 STATEMENT REGARDING ORAL ARGUMENT..............

...................................... 4 STATEMENT OF THE CASE

................................ ................................ ..................... 4 STATEMENT OF PROCEDURAL HISTORY................................................ ...............4 G

ROUND FOR REVIEW

.. ................................ ................................ ............................. . 4 The Court of Appeals erred in limiting its analysis of whether the federal constitutional error was harmless beyond a reasonable doubt to a focus on the weight of the evidence of Petitioner’s guilt. ARGUMENT

...... ............................................................................................................ 5 PRAYER FOR RELIEF

.................................................. .. ....................................... 7 APPENDIX (Copies of Opinions from Court of Appeals) CERTIFI CATE OF SERVICE..........

............................................................................ .. .... 7

2 | P a g eINDEX OF AUTHORITIES

Statutes, Codes, Constitutional Provisions, and Rules

Cases
Bell v. State, 415 S.W.3d 278, 280 (Tex. Crim. App. 2013)

. p. 5 Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007)

. p.5 Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006). p. 5 Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990)

. p.5 Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim . App. 2014). p.5 Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011)

. pp. 4

- 5 Taunton v. State, 2015 Tex. App. LEXIS 6234 (Tex. App. Texarkana June 19, 2015). p.5 Taunton v. State, 2015 Tex. App. LEXIS 6233 (Tex. App. Texarkana June 19, 2015)

. p. 4.

3 | P a g eSTATEMENT REGARDING ORAL ARGUMENT

Oral argument is waived

.

STATEMENT OF THE CASE This petition relates to two cases joined for trial and appeal. Petitioner was convicted by a jury of capital murder and murder. He was sentenced to life without parole for the capital murder , and lif e in prison for the murder

. There are two opinions from the Court of Appeals. Taunton v. State, 2015 Tex. App. LEXIS 6233 (Tex. App. Texarkana June 19, 2015) [murder] and Taunton v. State, 2015 Tex. App. LEXIS 6234 (Tex. App. Texarkana June 19, 2015) [capital murder] . The opinion in the capital murder case discusses the single issue raised on appeal in both cases. This Petition relates to both cases as the issue is the same.

STATEMENT OF PROCEDURAL HISTORY The opinions of the Court of Appeals were handed down on June 19, 2915

. No motions for rehearing were filed.

G ROUNDS FOR REVIEW

4 | P a g eThe Court of Appeals erred in limiting its analysis of w hether the federal constitutional error w as har mless beyond a reasonable doubt to a focus on the weight of the evidence of Petitioner ’ s guilt

. ARGUMENT
T he Court of Appeals improperly limited its analysis of whether the constitutional error was harmless. Review should be granted

. I n Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011) this Court a dvised how to assess whether federal constitutional error was harmless beyond a reasonable doubt

. S nowden is never cited by the Court of Appeals. I nstead, the Court of Appeals cited the factors in Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) , and it cited to Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006)

. See Taunton v. State, 2015 Tex. App. LEXIS
6234 , p. 17 (Tex. A pp. Texarkana June 19, 2015)

. I n Snowden , t his Court emphasized that t he factors earlier set forth in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 19 90) w ere not to be the exclusive considerations

. And, the Court modified the H arris factors to i nclude “ the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weigh t the jury would likely have assigned to it in its deliberations

. ” See Bell v. State, 415 S.W.3d 278, 280 (Tex. Crim. App. 2013)

. And, a s this Court said in

5 | P a g eSnowden , t here are many other considerations which may logically inform a proper harm analysis in a case. A ny circumstance apparent in the record should be considered. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014)

. The Court of Appeals erred by focus i ng its analysis on what it considered the overwhelming evidence of guilt. T his Court h as rejected that approach. A constitutional error may not be deemed harmless simply because the reviewing court is confident that the result the jury reached w as correct

. T his Court has emphasized that Rule 81(b)(2) requires reviewing courts to focus, not upo n the perceived accuracy of the conviction , but upon the error itself in the trial

. Snowden v. State, 353 S.W.3d 815,
818

- 819 (Tex. Crim. App. 2011)

. Among the factors t o be reviewed include “ the probable implications of the

error . ” Snowden, id. at 822. Included within these im plications are trial choices that only th e Defendant can make. Here , a fter the trial court denied the motion to suppress , the Petitioner absented hims elf from the trial, and only return ed to testify. (RR Vol. 4 p. 8.) (RR Vol. 7 p. 5.) The Court of Appeals failed to consider how the constitutional

error may have a ffected his choices on these decisions that involve fundamental rights

. By focusing on the weight of the evidence supporting guilt the Court of Appeals erred.

6 | P a g eP RAYER FOR RELIEF
T his Court should grant review . After review, the Court should remand the case back to the Court of Appeals for an analysis for harm

.
APPENDIX
Copies of the two opinions of the Court of Appeals are attached.
RESPECTFULLY SUMITTED,

____________________ S teven R. Miears 211 North Main Bonham, Texas 75418 S teve miears@msn.com Tel. 903

- 640

- 4963 Fax: 903

- 640

- 4964 State Bar Card No. 14025600 Attorney for Appellant

Certificate of Service This is to certify that a true and correct copy of the above and foregoing Appellant’s Brief on Appeal was hand

- delivered to Richard E. Glaser, Fannin County Criminal District Attorney; 101 East Sam Rayburn Drive; Bonham, Texas 75418; on February 12, 201 5; and to the State Prosecuting Attorney, LISA C.

7 | P a g eMcMINN , P.O. Box 13046 , Capitol Station , Austin, Texas 78711 , and that a copy was mailed to the Appellant , Thomas L l oyd Tau nton

.

_________________________________ Steven R. Miears

8 | P a g e