COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH

NO. 02-15-00202-CR 

PAUL SAMPSON JR. APPELLANT

V. 

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 1372715D 

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MEMORANDUM OPINION1

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Appellant Paul Sampson Jr. appeals from his conviction for sexual assault, 

a second-degree felony.2 In three points, he contends that the trial court’s jury 

charge on punishment violated his rights of due process and due course of law, 

that the statute authorizing a “DNA testing” fee charged to him as a court cost is 

 1See Tex. R. App. P. 47.4. 

2See Tex. Penal Code Ann. § 22.011(a)(1)(A), (f) (West 2011). 
2 

unconstitutional, and that the trial court abused its discretion by admitting several 

exhibits over his objection. We affirm. 

Background Facts 

 According to evidence presented at trial, in August 2013, appellant 

sexually assaulted L.B. (Lisa).3 Appellant and Lisa had known each other for 

several years. During questioning by the State, Lisa testified to communicating 

with appellant and several others by using her cell phone and Facebook account 

before and after the sexual assault. In reference to these communications, the 

State offered twenty photographic exhibits, nineteen of which displayed 

information on the screen of Lisa’s cell phone and one of which displayed her 

Facebook page. The photographs showed various call logs from Lisa to 

appellant, call logs from Lisa to several of her friends, several text messages 

between Lisa and appellant, and a Facebook conversation between Lisa and 

appellant. The trial court admitted these exhibits over appellant’s objection. 

 After the parties completed their presentations of evidence and arguments 

on the issue of appellant’s guilt, a jury convicted him. At the end of the trial’s 

punishment phase, over appellant’s objection, the trial court gave the jury a 

charge that contained statutorily required language concerning the possibility of 

good-conduct time credit during incarceration even though such credit is not 

 3To protect L.B.’s anonymity, we will refer to her through a pseudonym. 

See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 

1982). 
3 

available for a defendant convicted of sexual assault.4 The jury assessed 

appellant’s punishment at ten years’ confinement but recommended that the 

sentence be suspended and that appellant be placed on community supervision. 

In accordance with the jury’s verdict, the trial court placed appellant on 

community supervision. In its judgment, the trial court assessed costs of $559, 

including $250 for “DNA Testing,” as mandated by statute.5 Appellant appealed. 

Jury Charge 

 In his first point, appellant argues that the trial court erred by including the 

portion of the jury charge on punishment regarding the possibility of obtaining 

good-conduct time credit during incarceration. In our review of a jury charge, we 

first determine whether error occurred; if error did not occur, our analysis ends. 

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). 

 Appellant acknowledges that the instruction concerning the possibility of 

obtaining good-conduct time complied with article 37.07, section 4(a) of the code 

of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). He 

argues, however, that the instruction was erroneous and unconstitutional as 

applied to him because good-conduct time credit cannot be accumulated by 

someone who is convicted of sexual assault. See Tex. Gov’t Code Ann. 

§ 508.145(d) (making a person serving a sentence for sexual assault ineligible 

 4See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2016); 

Tex. Gov’t Code Ann. § 508.145(d)(1) (West Supp. 2016). 

5See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (West Supp. 2016). 
4 

for release based on the consideration of good-conduct time credit). But 

appellant acknowledges that the court of criminal appeals has addressed this 

issue and found no violation of due process.6 See Luquis v. State, 72 S.W.3d 

355, 357, 363–68 (Tex. Crim. App. 2002). 

We are bound by the precedent of the court of criminal appeals. 

Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort Worth 2014, no pet.). 

Accordingly, following Luquis, we hold that the trial court did not err by issuing 

the jury charge in compliance with article 37.07, section 4(a) of the code of 

criminal procedure. See 72 S.W.3d at 357, 363, 368; Thomas v. State, No. 02-

09-00341-CR, 2010 WL 3377792, at *1 (Tex. App.—Fort Worth 2010, pet. ref’d) 

(mem. op., not designated for publication) (following Luquis); Jennings v. State, 

No. 02-08-00145-CR, 2009 WL 1564961, at *7 (Tex. App.—Fort Worth June 4, 

2009, pet. ref’d) (mem. op., not designated for publication) (same); Sanders v. 

State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008, pet. ref’d) (same); 

see also Sanders v. State, 448 S.W.3d 546, 549 (Tex. App.—San Antonio 2014, 

no pet.) (collecting more cases and declaring the matter “well-settled”). We 

overrule appellant’s first point. 

DNA Testing Cost 

 In his second point, appellant contends that the collection of $250 for a 

DNA testing cost, as mandated by article 102.020(a)(1) of the code of criminal 

 6Appellant states that he brings his complaint “to preserve the issue for 

further review.” 
5 

procedure, is facially unconstitutional because it is not necessary or incidental to 

the trial of a criminal case. See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) 

(requiring a person convicted of certain offenses to pay $250 as a court cost). 

Appellant recognizes, however, that the court of criminal appeals recently 

rejected the “necessary and incidental” standard as governing the 

constitutionality of court costs.7 See Peraza v. State, 467 S.W.3d 508, 517, 521 

(Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). 

 In Peraza, the court rejected the very argument appellant makes in his 

second point, which is that article 102.020 is facially unconstitutional. Id. at 510, 

521 (“Because Peraza has not demonstrated that every application of the statute 

assigning DNA Record Fee revenue to the state highway fund would be 

unconstitutional, he has not met his burden to show that the portion of the DNA 

Record Fee that benefits the state highway fund is facially unconstitutional.”). 

The court rejected its prior opinion in Ex parte Carson—the case upon which 

appellant principally relies in his second point—as governing the constitutionality 

of court costs. 143 Tex. Crim. 498, 506, 159 S.W.2d 126, 130 (1942) (op. on 

reh’g), overruled by Peraza, 467 S.W.3d at 517. 

Appellant contends that Peraza was wrongly decided for several reasons, 

but we do not have the discretion to reject the holdings of the Texas Court of 

Criminal Appeals. See Crenshaw, 424 S.W.3d at 755. Because the holding in 

 7Appellant again states that he brings his complaint “to preserve the matter 

for further review.” 
6 

Peraza explicitly forecloses appellant’s facial challenge to the constitutionality of 

article 102.020 and rejects Carson’s “necessary and incidental” standard upon 

which he bases his argument, we overrule his second point. See Peraza, 467 

S.W.3d at 510, 517, 521. 

Admission of Evidence 

In his third point, appellant argues that the trial court abused its discretion 

by admitting photographs of Lisa’s cell phone and Facebook page. Some of 

these photographs display text messages from appellant stating “Food is here,” “I 

really enjoyed ur company last night,” and “I’m at the cinema.” One photograph 

displays a Facebook conversation between Lisa and appellant in which he wrote, 

“i hear u” and in which she wrote, among other things, “Hi Paul, go to sleep[.]” 

The other photographs all display logs of Lisa’s received and missed calls. 

Appellant contends that these photographs were not relevant because they did 

not have any tendency to make a fact of consequence more or less probable and 

therefore should not have been admitted. See Tex. R. Evid. 401. 

Assuming, without deciding, that the trial court erred by admitting the 

photographs, we conclude that the error was not harmful under the standard for 

nonconstitutional error. A nonconstitutional error that does not “affect substantial 

rights must be disregarded.” Tex. R. App. P. 44.2(b); see James v. State, 335 

S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.) (“Generally, the 

erroneous admission or exclusion of evidence is nonconstitutional error governed 
7 

by rule 44.2(b) if the trial court’s ruling merely offends the rules of evidence.”).8 A 

substantial right is affected when the error had a substantial and injurious effect 

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial 

right if we have “fair assurance that the error did not influence the jury, or had but 

a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); 

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The improper admission of evidence is harmless if the same or similar 

evidence is admitted without objection at another point in the trial. Estrada v. 

State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 562 U.S. 

1142 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An 

error in the admission of evidence is cured where the same evidence comes in 

elsewhere without objection.”); Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. 

App. 1998); Hill v. State, 303 S.W.3d 863, 876 (Tex. App.—Fort Worth 2009, pet. 

ref’d). Here, before the trial court admitted the complained-of photographs, Lisa 

testified, without objection, that she had received and missed calls from 

appellant, that she had sent him an online message stating “Paul, go to bed,” and 

that they had exchanged text messages. Specifically, Lisa testified that appellant 

had sent her a text message stating that he was in a movie theater and another 

 8In his brief, appellant concedes that rule 44.2(b)’s harm standard for 

nonconstitutional error applies to this point. 
8 

text message stating that her food was ready after she had agreed to eat dinner 

with him. Later in Lisa’s testimony, the State offered the photographs at issue 

(except the Facebook photograph), appellant objected, and the trial court 

overruled the objection and admitted the photographs. Without any further 

objection, Lisa testified about the contents of the photographs, including the 

Facebook photograph and the text message that he had enjoyed her company, 

and she also testified about various calls made to and from her cell phone. The 

State then offered the Facebook photograph, and the trial court admitted it over 

appellant’s objection. After the Facebook photograph’s admission, Lisa again 

testified about its contents without objection. 

Under these circumstances, because unobjected-to evidence proves the 

same facts as the objected-to photographs, we conclude that any error in 

admitting the photographs was harmless. See Tex. R. App. P. 44.2(b); Estrada, 

313 S.W.3d at 302 n.29; Hailey v. State, 413 S.W.3d 457, 469 (Tex. App.—Fort 

Worth 2012, pet. ref’d); Elder v. State, 132 S.W.3d 20, 27 (Tex. App.—Fort Worth 

2004, pet. ref’d), cert. denied, 544 U.S. 925 (2005). We overrule appellant’s third 

point. 
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Conclusion 

 Having overruled appellant’s three points, we affirm the trial court’s 

judgment. 

 /s/ Terrie Livingston 

TERRIE LIVINGSTON 

CHIEF JUSTICE 

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. 

DO NOT PUBLISH 

Tex. R. App. P. 47.2(b) 

DELIVERED: August 25, 2016