## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00202-CR

PAUL SAMPSON JR. APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1372715D

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### MEMORANDUM OPINION 1

---------- 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 du e course of law, that the statute authorizing a “DNA testing” fee charged to him as a court cost is

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

2 See Tex. Penal Code Ann. § 22.0 11(a)(1)(A), (f) (West 2011).2 unconstitutional, and that the trial court ab used 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 questi oning 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 ex hibits, nineteen of which displayed information on the screen of Lisa’s cell phone and one of which displayed her Facebook page. The phot ographs showed various call logs from Lisa to appellant, call logs from Lisa to severa l of her friends, several text messages between Lisa and appellant, and a Face book conversation between Lisa and appellant. The trial court admitted thes e exhibits over appellant’s objection. After the parties completed their pres entations of evidence and arguments on the issue of appellant’s guilt, a jury co nvicted him. At the end of the trial’s punishment phase, over a ppellant’s objection, the tr ial court gave the jury a charge that contained stat utorily required language concerning the possibility of good-conduct time credit during incarcerat ion even though such credit is not

3 To protect L.B.’s anonymi ty, we will refer to her through a pseudonym. See McClendon v. State , 643 S.W.2d 936, 936 n.1 (T ex. Crim. App. [Panel Op.] 1982).3 available for a defendant co nvicted 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 verdic t, the trial court placed appellant on community supervision. In its judgment, the trial court assess ed 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 punishm ent regarding t he 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 conc erning 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. An n. art. 37.07, § 4(a). He argues, however, that the instruction was erroneous and unconstitutional as applied to him because good-conduct ti me 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

4 See 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).

5 See 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 viol ation 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. Ap p.—Fort Worth 2014, no pet.). Accordingly, following Luquis , we hold that the trial co urt did not err by issuing the jury charge in complianc e with article 37.07, sect ion 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 Wo rth 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 desi gnated for publication) (same); Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App. —Fort Worth 2008, pe t. ref’d) (same); see also Sand ers v. State , 448 S.W.3d 546, 549 (Tex . App.—San Antonio 2014, no pet.) (collecting more ca ses and declaring the matter “well-settled”). We overrule appellant’s first point. DNA Testing Cost In his second point, appellant conte nds that the collect ion of $250 for a DNA testing cost, as mandat ed by article 102.020(a)(1 ) of the code of criminal

6 Appellant states that he brings his complaint “to preser ve the issue for further review.”5 procedure, is facially unconstitutional becau se 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, howeve r, that the court of cr iminal appeals recently rejected the “necessary and incide ntal” 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 ar gument 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 Fe e revenue to the state highway fund would be unconstitutional, he has not met his burden to show th at the portion of the DNA Record Fee that benefits the state highwa y fund is facially un constitutional.”). The court rejected its prior opinion in Ex parte Carson— the case upon which appellant principally relies in his second point—as gove rning the constitutionality of court costs. 143 Tex. Crim. 498, 50 6, 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 reje ct the holdings of the Texas Court of Criminal Appeals. See Crenshaw , 424 S.W.3d at 755. Because the holding in

7 Appellant again states that he brings his complaint “to preserve the matter for further review.”6 Peraza explicitly forecloses appellant’s facial challenge to the co nstitutionality of article 102.020 and rejects Carson ’s “necessary and inci dental” standard upon which he bases his ar gument, we overrule his second point. See Peraza , 467 S.W.3d at 510, 517, 521. Admission of Evidence In his third point, appellant argues th at the trial court abused its discretion by admitting photographs of Lisa’s cell phone and Fa cebook page. Some of these photographs display text messages from appellant st ating “Food is here,” “I really enjoyed ur company la st night,” and “I’m at the cinema.” One photograph displays a Facebook co nversation between Lisa and appellant in which he wrote, “i hear u” and in wh ich 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 hav e been admitted. See Tex. R. Evid. 401. Assuming, without deciding , that the trial court erred by admitting the photographs, we conclude t hat the error was not harmfu l under the standard for nonconstitutional error. A nonconstitutiona l error that does no t “affect substantial rights must be disre garded.” Tex. R. App. P. 44.2(b); see James v. State , 335 S.W.3d 719, 726 (Tex. App.—Fort Wo rth 2011, no pet.) (“Generally, the erroneous admission or exclusion of evid ence is nonconstitutional error governed7 by rule 44.2(b) if the trial court’s rulin g merely offends the rules of evidence.”). 8 A substantial right is affected when the error had a subst antial and injurious effect or influence in determin ing 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 a ffect a substantial right if we have “fair assura nce that the error did not in fluence the jury, or had but a slight effect.” Solomon v. State , 49 S.W.3d 356, 365 (T ex. 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 objectio n 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 (T ex. 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 admi tted the complained-of photographs, Lisa testified, without objection, that s he had received and missed calls from appellant, that she h ad sent him an online message stating “Paul, go to bed,” and that they had exchange d text messages. Specifically, Lisa testified that appellant had sent her a text message stating that he was in a movie theater and another

8 In his brief, appellant co ncedes 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), appe llant objected, an d the trial court overruled the objection and admitted t he photographs. Wi thout any further objection, Lisa testified about the cont ents of the photogra phs, including the Facebook photograph and th e text message t hat he had enjoyed her company, and she also testified abou t various calls made to an d from her cell phone. The State then offered the Facebook photograph, and the trial court admitted it over appellant’s objection. After the Facebo ok photograph’s admission, Lisa again testified about its contents without objection. Under these circumstance s, because unobjected-to evidence proves the same facts as the objected-to photogra phs, we conclude that any error in admitting the photogr aphs 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.9 Conclusion Having overruled appella nt’s three points, we a ffirm 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