Affirmed and Memorandum Opinion filed January 29, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00027-CR

NO. 14-18-00028-CR

NO. 14-18-00029-CR

EX PARTE MARK DOUGLAS ROBISON 

On Appeal from the 351st District Court 

Harris County, Texas 

Trial Court Cause Nos. 1324897-B, 1324898-B & 1324899-B 

MEMORANDUM OPINION 

In this appeal from an order denying habeas corpus relief, we consider four 

claims of ineffective assistance of counsel. For reasons explained more fully below, 

we conclude that each claim is without merit. We therefore affirm the habeas court’s 

order. 

BACKGROUND 

The Trial. Appellant was charged with three counts of possessing child 

pornography. Appellant testified that he knowingly possessed the pornography, but 
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he claimed that his possession was for a bona fide educational purpose, which is an 

affirmative defense to prosecution. More specifically, appellant explained that he 

possessed the pornography because he was researching the scope of child sexual 

abuse, which he aspired to end. 

The prosecutor disputed the sincerity of this defense by pointing out that 

appellant never discussed his research until after he was indicted. For example, 

appellant never notified law enforcement before conducting his research, even 

though he knew that law enforcement frequently tracked the online distribution of 

child pornography. Similarly, appellant never reached out to a university, a peer 

review group, or an attorney before conducting his research. Also, he never even 

alerted his wife about his research. 

The prosecutor drew attention to other omissions too. She established that 

appellant saved thousands of pornographic images to his personal computer, but no 

scholarly articles. She elicited testimony that appellant chose to remain silent during 

the execution of a search warrant, rather than explain to his investigators that he 

possessed child pornography for a bona fide educational purpose. She also elicited 

testimony that appellant never mentioned his affirmative defense to her during 

several pretrial hearings. 

The jury rejected appellant’s affirmative defense, convicted him on all three 

counts, and recommended that he receive a probated sentence. 

The Direct Appeal. Appellant raised three issues in his direct appeal to this 

court. 

In his first issue, appellant argued that the trial court had reversibly erred when 

it refused to admit two of his self-published books into evidence. We assumed for 
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the sake of argument that the trial court had erred, but we concluded that the error 

was harmless under the standard for nonconstitutional error. 

In his second issue, appellant asserted multiple claims of ineffective assistance 

of counsel. He first claimed that counsel was deficient by not moving to strike biased 

members of the venire panel. We concluded that this claim failed because the record 

did not conclusively establish that the challenged venirepersons were biased. 

Appellant argued next that counsel was deficient because counsel did not object 

when the prosecutor elicited testimony about appellant’s pre-arrest silence, and 

because counsel himself also elicited testimony about the same pre-arrest silence. 

We concluded that these claims failed because the testimony was admissible and 

because a reasonable strategy could be imagined for counsel’s actions. Finally, 

appellant argued that counsel was deficient by failing to object to the prosecutor’s 

criticism of appellant’s post-arrest silence during the pretrial hearings. Even though 

the record was silent as to counsel’s strategy, we concluded that counsel was 

deficient because no reasonable explanation could be imagined for the failure to 

object. However, we held that counsel’s deficiency did not result in any prejudice.

In his third issue, appellant argued that the prosecutor had engaged in several 

forms of misconduct by making improper comments about appellant’s pre-arrest and 

post-arrest silence. We held that this issue was not preserved because counsel never 

objected to any instance of alleged misconduct. 

Having overruled all of appellant’s issues, we affirmed the trial court’s 

judgment. See Robison v. State, 461 S.W.3d 194, 207 (Tex. App.—Houston [14th 

Dist.] 2015, pet. ref’d). 

The Petition for Discretionary Review. Appellant then petitioned for 

discretionary review before the Texas Court of Criminal Appeals. He asserted two 

grounds in his petition. First, he argued that the court of appeals had erred by 
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reviewing his evidentiary challenge under the standard for nonconstitutional error, 

instead of constitutional error. Second, he argued that the court of appeals had erred 

by holding that a claim of prosecutorial misconduct required a timely objection. 

Appellant did not raise a complaint about the ineffective assistance of counsel, 

and the Court of Criminal Appeals refused his petition without comment. 

The Habeas Proceedings. Appellant then filed an application for writ of 

habeas corpus, in which he asserted four claims of ineffective assistance of counsel. 

The first two claims had also been raised as issues in the direct appeal. In these 

claims, appellant asserted that counsel was deficient for failing to object when the 

prosecutor referred to appellant’s pre-arrest and post-arrest silence. 

The third claim was a variation on an issue that had been raised in the direct 

appeal. Appellant asserted in this claim that counsel was deficient because counsel 

did not present an argument to the trial court that would make the exclusion of the 

self-published books reviewable under the more rigorous standard for constitutional 

error. 

The fourth claim was entirely novel. Appellant asserted that counsel was 

deficient by failing to present expert testimony from two psychologists during the 

guilt phase of the trial. 

Counsel filed an affidavit, addressing his strategy as to each of these claims. 

The habeas court credited counsel’s explanations and denied relief without the 

benefit of a live hearing. The habeas court also entered written findings of fact and 

conclusions of law. 

Appellant now appeals from the order denying habeas corpus relief. 
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ANALYSIS 

Standard of Review. To prevail on a claim of ineffectiveness, appellant had 

the burden of proving by a preponderance of the evidence that (1) his trial counsel’s 

performance was deficient, in that it fell below an objective standard of 

reasonableness; and (2) but for counsel’s deficient performance, the outcome would 

have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The 

habeas court ruled that appellant did not satisfy this burden with respect to any of 

his claims. To the extent that the habeas court’s ruling was based on an evaluation 

of credibility and demeanor, we review that ruling for an abuse of discretion, 

affording almost total deference to the court’s findings when they are supported by 

the record. See Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). To the 

extent that the ruling was based on a pure question of law, or upon a mixed question 

of law and fact not depending on an evaluation of credibility and demeanor, our 

review is de novo. See Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 

2015). 

Re-litigated Claims. The habeas court noted in its findings of fact that 

appellant’s first two claims had already been raised and rejected on direct appeal. 

The habeas court further determined that relief should be denied as to these claims 

because “issues raised and rejected on direct appeal may not be reconsidered on a 

post-conviction writ.” See Ex parte Schuessler, 846 S.W.2d 850, 852 n.6 (Tex. Crim. 

App. 1993) (“Habeas corpus is traditionally unavailable to review matters which 

were raised and rejected on appeal.”). 

Appellant invokes an exception to the habeas court’s rule, arguing that a claim 

may be re-litigated “where direct appeal cannot be expected to provide an adequate 

record to evaluate the claim in question, and the claim might be substantiated 

through additional evidence gathering in a habeas corpus proceeding.” See Ex parte 
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Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Appellant believes this 

exception applies because “the structure and design of the Texas system . . . make it 

‘virtually impossible’ for an ineffective assistance claim to be presented on direct 

review.” See Trevino v. Thaler, 569 U.S. 413, 417 (2013). 

For the sake of argument, we will assume without deciding that appellant was 

allowed to re-litigate his claims, because the outcome is the same in either event. We 

therefore proceed to the merits. 

Pre-arrest Silence. When appellant testified during the guilt phase of his trial, 

the prosecutor elicited testimony that appellant had been less than forthcoming when 

he met with investigators during the execution of a search warrant, which occurred 

before his arrest. The testimony established that appellant never mentioned his 

alleged research to the investigators when they were executing the search warrant; 

that appellant terminated a voluntary interview with the investigators and asked to 

speak to an attorney; and that appellant never disclosed to the investigators which of 

his personal computers possessed the child pornography. The prosecutor elicited 

similar testimony from the investigators, who testified that, after a certain point in 

his interview, appellant “didn’t want to talk anymore” and “he stated he no longer 

wished to cooperate.” The prosecutor emphasized all of this evidence in her closing 

arguments. 

In the direct appeal, we were asked to consider whether counsel was deficient 

because counsel never objected to any of these references to appellant’s pre-arrest 

silence. We held that counsel was not deficient because “evidence of the defendant’s 

pre-arrest and pre-Miranda silence . . . may be admitted for purposes of 

impeachment without violating the defendant’s Fifth Amendment right against selfincrimination.” See Robison, 461 S.W.3d at 205. And in support of that holding, we 

cited to two cases from the Texas Court of Criminal Appeals: Salinas v. State, 369 
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S.W.3d 176 (Tex. Crim. App. 2012), aff’d, 570 U.S. 178 (2013) (plurality op.), and 

Turner v. State, 719 S.W.2d 190 (Tex. Crim. App. 1986). 

Appellant did not challenge our analysis in a motion for rehearing or in his 

petition for discretionary review. But in his application for writ of habeas corpus, he 

disputed our reliance on Salinas, for apparently two reasons. First, appellant noted 

that, in his case, the evidence of pre-arrest silence was admitted for impeachment 

purposes, whereas in Salinas, the evidence of pre-arrest silence was admitted for 

substantive purposes because the defendant there did not testify. Second, appellant 

noted that when Salinas was considered by the United States Supreme Court, a 

majority of the justices there could not reach a consensus as to whether the Fifth 

Amendment was applicable to the use of a non-testifying defendant’s pre-arrest 

silence. 

These arguments fail for at least three reasons. 

First, when we cited to Salinas, we were referring to the majority opinion from 

the Texas Court of Criminal Appeals, which is binding on us—not on the plurality 

opinion from the United States Supreme Court, which is not binding on us. See CTS 

Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81 (1987) (“As the plurality opinion 

in MITE did not represent the views of a majority of the Court, we are not bound by 

its reasoning.”); Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013) 

(“Plurality opinions do not constitute binding authority.”). 

Second, the majority opinion from the Texas Court of Criminal Appeals 

clearly holds that evidence of pre-arrest silence is admissible “regardless of whether 

a defendant testifies.” See Salinas, 369 S.W.3d at 179 (“We hold that pre-arrest, preMiranda silence is not protected by the Fifth Amendment right against compelled 

self-incrimination, and that prosecutors may comment on such silence regardless of 

whether a defendant testifies.”). 
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And third, appellant totally failed to address our citation to Turner, which 

involved evidence of pre-arrest silence for impeachment purposes, exactly like 

appellant’s case. See Turner, 719 S.W.2d at 193 (“The attorney for the State was 

correct in his impeachment of the appellant through appellant’s pre-arrest statements 

which failed to mention his alibi. The fact that the appellant failed to inform the 

police of his alibi on March 28 and April 7, 1983, when he had an opportunity to do 

so, and in circumstances in which he would be expected to speak out, was admissible 

to impeach the appellant at trial.”). 

In one final point, appellant asserts that “this Court should order factual 

development on the issue to determine counsel’s thinking.” But counsel has already 

explained his thinking. Counsel testified in his affidavit that he did not object to the 

prosecutor’s comments about appellant’s pre-arrest silence because he believed that 

such evidence was admissible for purposes of impeachment. Counsel was correct on 

that point, for the reasons we have stated here and in appellant’s direct appeal. The 

habeas court was also correct in noting that “counsel cannot be found ineffective for 

failing to object to admissible evidence.” See Ex parte Jimenez, 364 S.W.3d 866, 

887 (Tex. Crim. App. 2012) (“The failure to object to proper questions and 

admissible testimony . . . is not ineffective assistance.”). 

Post-arrest Silence. The prosecutor also remarked on appellant’s post-arrest 

silence. More specifically, she elicited testimony that appellant had appeared for 

eleven pretrial hearings, and on each of those occasions, he never once approached 

her to explain that he had been researching child pornography for a bona fide 

educational purpose. 

On direct appeal, we held that counsel was deficient by failing to object to this 

line of questioning. As we explained: 
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Appellant may have had an opportunity to approach the prosecutor and 

discuss the merits of his defense, but he was under no legal obligation 

to do so. See Franklin v. State, 606 S.W.2d 818, 848 (Tex. Crim. App. 

1978) (op. on reh’g) (“Merely having the opportunity to say something 

does not constitute circumstances in which one would be expected to 

speak out.”). The pretrial hearings were conducted for the limited 

purpose of resetting the case for a later date, and appellant was 

represented by counsel during each of the hearings. Appellant was 

entitled to rely on counsel’s representation and avoid direct contact with 

the prosecutor, who acted as his legal adversary. The prosecutor’s line 

of questioning was neither relevant nor appropriate, and we can think 

of no reason why counsel would not object to the improper criticisms 

of appellant’s in-court silence. 

Robison, 461 S.W.3d at 206. 

But we further explained that counsel’s deficiency did not result in any 

prejudice: 

The jury heard testimony that appellant was silent during the execution 

of the search warrant and that he had not mentioned to his wife that he 

had been researching child pornography. That evidence of pre-arrest 

silence, which was admissible for impeachment purposes, had already 

cast serious doubt on appellant’s credibility. There is no reasonable 

likelihood that the jury would have disregarded appellant’s pre-arrest 

silence but not his in-court silence. 

Id.

In response to appellant’s habeas application, counsel offered the following 

explanation for his failure to object: 

I did not object to the prosecutor’s comments on Mr. Robison’s postarrest silence because the defense has no duty to inform the State of its 

available defenses. I did not want to alert the State during pre-trial 

settings of the bona fide educational affirmative defense (which, while 

certainly codified as an affirmative and available defense, is rarely 

applied). 
10

Appellant correctly observes that this explanation misses the mark. The claim 

of ineffectiveness arises out of counsel’s omissions during the trial on the merits 

(when appellant’s defensive theory was already known to the prosecutor), not during 

the pre-trial settings (when the defensive theory may not have been known). 

In any event, appellant could not prevail on this claim of ineffectiveness 

without establishing that the outcome of the trial would have been different but for 

counsel’s failure to object. And as to that point, appellant did not develop any new 

facts in the habeas record that would alter our conclusion that he suffered no 

prejudice. Considering the abundance of admissible evidence that appellant had 

neglected to mention his research to anyone before his arrest, there is no reasonable 

likelihood that appellant’s post-arrest silence moved the jury from a state of nonpersuasion to a state of persuasion. 

In the absence of any new factual points, appellant challenges our prejudice 

analysis with two new legal points. 

First, appellant argues that we were “wrong” on direct appeal because the 

failure to object to post-arrest silence is itself prejudicial, citing Hall v. State, 161 

S.W.3d 142 (Tex. App.—Texarkana 2005, pet. ref’d). But Hall is distinguishable 

because it involved evidence of post-arrest silence only (not pre-arrest silence too), 

and the defense attorney in that case was found to be deficient in more ways than 

just his failure to object to the post-arrest silence. Id. at 152–55. Also, the court of 

appeals in Hall conducted a full analysis of prejudice. Id. at 155–56. The court of 

appeals did not summarily conclude that the defendant was entitled to relief due to 

counsel’s failure to object, as appellant would seemingly have us do. 

Second, appellant argues that the prejudice from the post-arrest silence is 

cumulative of the prejudice from the pre-arrest silence, and that we cannot point to 

one error to excuse the other. This argument is fatally flawed because it depends on 
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the faulty premise that counsel was deficient by not objecting to the evidence of prearrest silence. As we explained in the direct appeal and again in this opinion, counsel 

was not deficient in that regard because the evidence of pre-arrest silence was 

admissible. 

Self-published Books. Counsel offered into evidence two books that appellant 

authored and self-published. The first book was a collection of poems that appellant 

wrote nearly twenty years before child pornography was discovered on his personal 

computer. None of the poems expressly broached the subject of child pornography, 

but some addressed themes such as “right and wrong” and “nastiness” in the world. 

The second book was an educational book that appellant wrote after he was 

indicted. This book was organized into three parts. The first part addressed 

appellant’s personal relationship with child sexual abuse. The second part addressed 

the societal problems associated with child sexual abuse, including the harm to the 

child and the proliferation of child pornography. The third part included proposals 

for tackling such problems. 

The prosecutor objected to both books on grounds of relevancy and hearsay. 

Counsel responded that he was not offering the books for the truth of the matter 

asserted. Counsel also explained that the book of poetry was relevant because it 

showed that appellant was trying “to get the word out.” As for the educational book, 

counsel explained: 

It’s directly relevant as to our affirmative defense as to educational use. 

[Appellant] has published a document relating to this. The jury can 

weigh the credibility as to whether it’s bona fide or not. But he 

specifically talks about child pornography, specifically talks about 

child sexual abuse, references acts that are—most people would 

classify as that. So, it’s part and parcel of our defense. 
12

On direct appeal, we assumed without deciding that the trial court had erred 

by excluding the books. But we held that the errors were harmless under the standard 

for nonconstitutional error because the books were cumulative of other evidence. 

We explained that appellant had testified at length about the contents of his books. 

We also noted that appellant had produced evidence that he co-hosted a radio 

program and created a website, both of which were aimed at spreading awareness of

child sexual abuse. “Thus,” we held, “the jury was still able to consider whether 

appellant possessed the child pornography for a bona fide educational purpose.” See 

Robison, 461 S.W.3d at 201–02.

In his habeas application, appellant asserted that counsel was deficient 

because counsel did not specifically argue that the exclusion of appellant’s books 

amounted to a constitutional violation. Appellant asserted that if counsel had made 

that argument—for example, by objecting that the exclusion deprived him of his 

constitutional right to present a defense—then the exclusion of his books would have 

been reviewable under the standard for constitutional error, instead of 

nonconstitutional error. 

Counsel did not directly respond to appellant’s claim in his affidavit. Instead 

of addressing the distinction between the two standards for reversible error in 

criminal cases, counsel merely explained his actions as follows: “I believe I properly 

invoked Rule 401 of the Texas Rules of Evidence and sufficiently stated my reasons 

for offering the books into evidence, thereby preserving the complaint for appellate 

review.” 

The habeas court found that counsel’s actions were appropriate, and we agree 

for the reasons stated in our opinion on direct appeal. 

Also, we conclude that appellant’s new arguments in this appeal are meritless. 

Contrary to appellant’s suggestions, we would not have reviewed his evidentiary 
13

complaints under the more rigorous standard for constitutional error if counsel had 

worded his objection differently. “The exclusion of a defendant’s evidence will be 

constitutional error only if the evidence forms such a vital portion of the case that 

exclusion effectively precludes the defendant from presenting a defense.” Potier v. 

State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). As we explained in the direct 

appeal, appellant was not deprived of the right to present a defense because “the jury 

was still able to consider whether appellant possessed the child pornography for a 

bona fide educational purpose.” See Robison, 461 S.W.3d at 201–02; see also 

Vasquez v. State, 501 S.W.3d 691, 700 (Tex. App.—Houston [14th Dist.] 2016, pet. 

ref’d) (rejecting a similar argument that the exclusion of evidence was reviewable 

under the standard for constitutional error). 

Expert Testimony. Counsel called two psychologists during the punishment 

phase of appellant’s trial. The primary purpose of the psychologists’ testimony was 

to establish that appellant was not at risk for harming children, and that he would be 

a good candidate for a sex-offender treatment program while on community 

supervision. 

The psychologists addressed other matters too. They said that appellant 

admitted to knowingly possessing child pornography, and they indicated that it was 

possible for a person to possess such pornography without being physically or 

sexually aroused. 

Appellant asserted in his habeas application that counsel was deficient by not 

calling the same two psychologists during the guilt phase of trial. According to 

appellant, the psychologists’ testimony that a person could possess child 

pornography without being aroused by it would have supported a finding that he 

possessed his pornography for a bona fide educational purpose. 
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Counsel filed a response affidavit, which gave the following explanation for 

his actions: 

My trial strategy involving the two expert witnesses was very 

straightforward. [The psychologists] were called for the sole and 

express separate and respective purposes of providing a sex offender 

diagnostic assessment and then therapist’s treatment. They were not 

consulted on providing expert testimony on Mr. Robison’s claims of a 

bona fide educational purpose for viewing child pornography. [The 

psychologists] were integral to the overall defense of blunting the 

State’s attack that Mr. Robison presented a clear and present danger 

within the community, and to show that there was absolutely no clinical 

support whatsoever for the State’s comments that Mr. Robison was 

actually assaulting or could potentially assault children. Was Mr. 

Robison gathering computer-based images admittedly containing child 

pornography? Yes. Were those images then fueling later actions of 

assault against children? No. During guilt-innocence, the experts’ 

testimony would have had to specifically addresses these issues, which 

[were] outside the scope of their engagement: (1) for a bona fide 

educational use of child pornography, were they aware that Mr. 

Robison had never approached law enforcement before he decided to 

investigate child pornography?; (2) for a bona fide educational use of 

child pornography, were they aware that Mr. Robison had made no 

attempt to contact any university, peer review group, or any attorney 

for guidance before or during his “research” into child pornography; 

(3) for a bona fide educational use of child pornography, were they 

aware that Mr. Robison had failed to even alert his wife about his desire 

to research the issue of child pornography (as evidenced by his wife’s 

comments that she was unaware that he had been downloading child 

pornography); and (4) for a bona fide educational use of child 

pornography, were they aware that despite saving literally thousands of 

child pornographic images to his computer, he had written no scholarly 

peer reviewed articles on this subject? 

The habeas court expressly found that counsel’s trial strategy was reasonable. 

Now on appeal, appellant challenges counsel’s explanation by arguing that 

counsel was deficient by not enlarging the scope of the psychologists’ engagement 

to include these other areas of discussion. This argument fails for two reasons. 
15

First, the habeas court found that both psychologists had formed a preliminary 

diagnosis of appellant as “a possible pedophile.” The habeas court also found that if 

the psychologists had been called to testify during the guilt phase of trial, this 

diagnosis would have been revealed to the jury. Counsel could have reasonably 

determined that the jury should not know this diagnosis when it was deciding 

appellant’s guilt. 

Second, the habeas court found that appellant “gave lengthy testimony during 

guilt-innocence as to his reasons for possessing child pornography, and the jury was 

free to disbelieve those reasons.” Because the psychologists’ testimony would have 

been cumulative at best, the habeas court found that appellant had not shown a 

reasonable likelihood of a different outcome. Appellant offers no challenge to this 

finding, which is supported by the record. Deferring to this finding as we must, we 

conclude that appellant failed to prove his claim of ineffective assistance of counsel. 

CONCLUSION 

The habeas court’s order is affirmed. 

 

 /s/ Tracy Christopher

 Justice 

Panel consists of Justices Christopher, Bourliot, and Spain.

Do Not Publish — Tex. R. App. P. 47.2(b).