NO.___________________ IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS

NO. 14

- 13

- 00682

- CR NO. 14

- 13

- 00683

- CR NO. 14

- 13

- 00684

- CR IN THE COURT OF APPEALS FOR THE

FOURTEENTH DISTRICT OF TEXAS AT HOUSTON

TRIAL COURT CAUSE NOS. 1324897, 1324898 & 1 324899 IN THE 351 ST DISTRICT COURT

OF HARRIS COUNTY, TEXAS

MARK DOUGLAS ROBISON
, Appellant

VS.

THE STATE OF TEXAS, Appellee

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

Nicole DeBorde Bires Schaffer and DeBorde SBOT 00787344 712 Main Street, Suite 2400 Houston, Texas 77002 (713) 228

- 8500 – telephone (713) 228

- 0034 – facsimile Nicole@BSDLawFirm.com ORAL ARGUMENT REQUESTED Attorney for Appellant MARK DO UGLAS ROBISON PD-0214-15, PD-0215-15 & PD-0216-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 3/3/2015 12:43:18 PM Accepted 3/6/2015 10:18:18 AM

ABEL ACOSTA CLERK1 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to T EX

. R. A PP

. P ROC . 68.4(c), appellant requests oral argument.

I DENTITY OF P ARTIES AND C OUNSEL

A PPELLANT : Mark Douglas Robison

P RESIDING J UDGE : Hon. Susan Brown 351st District Court 1201 Franklin Houston, Texas 77002

T RIAL P ROSECUTORS : Shannon Davis Lacy Johnson Assistant District Attorney s 1201 Franklin Houston, Texas 77002

D EFENSE C OUNSEL AT T RIAL : Thomas A. Martin Attorney at Law 1018 Preston, Suite 500 Houston, Texas 77002
S TATE ’ S A PPELLATE C OUNSEL : Hon. Devon Anderson Harris County District Attorney 1201 Franklin Houston, Texas 77002

Jessica Akins Assistant District Attorney 1201 Franklin Houston, Texas 77002

D EFENSE C OUNSEL ON A PPEAL : Nicole DeBorde Attorney at Law 712 Main Street, Suite 2400 Houston, Texas 770022 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

................................ ............................ i

TABLE OF CONTENTS

................................ ................................ .......................... ii

INDE X OF AUTHO RITIES

................................ ................................ ................. v i , v

STATEMENT REGARDING ORAL ARGUMENT

................................ ................ i

STATEMENT OF THE CASE

................................ ................................ ................. vi

S TATEMENT OF PROCEDURAL HISTORY

................................ ........................ 6

GROUND FOR REVIEW NUMBER ONE

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

Is the denial of admission of books, which were authored by Appellant and which outlined Appellant’s affirmative defense, into evidence constitutional error requiring the Court of Appeals to determine whether it was satisfied that the error did not contribute to Appellant’s conviction beyond a reasonable doubt?

ARGUMENT

................................ ................................ ................................ ............. 8

GROUND FOR REVIEW NUMBER TWO

................................ ............................. 9

In Penry v. State, Cook v. State and Estrada v. State, did this Court, by deciding that a contemporaneous objection is always required to preserve prosecutorial misconduct for appellate review, decide an important question of state law in conflict with the Supreme Co urt of United States which holds that prosecutorial misconduct is fundamental error?

ARGUMENT

................................ ................................ ................................ ........... 10

PRAYER FOR RELIEF

................................ ................................ .......................... 1 4

CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 1 53 CERTIFICATE OF SERVICE

................................ ................................ ................ 1 6

APPENDIX

................................ ................................ ................................ ........... A

- 14 INDEX OF AUTHORITIES

CASES PAGE

Cockrell , 933 S.W.2d 73, 89 (Te x.Crim.App.1996)

................ ...............................10

Coe v. State , 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).

... .............................. . 10

Cook v. State , 858 S.W.2d 467, 473 (Tex. Crim. App. 1993)

.. ............................... .. 8

C rane v. Kentucky , 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)..... .7
Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.C t. 1868, 40 L.Ed.2d 431 (1974))..........................................................................................

........................... 11

Estrada v. State , 313 S.W.3d 274, 303 (Tex. Crim. App. 2010)............................. ..8

Hajjar v. State , 176 S.W. 3d 554, 566 (Tex. App.

— Houston [1st. Dist] 2004, pet. ref’d)

............................................. ........................................................................... ..9

Holmes v. South Carolina , 547 U.S. 319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006)

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

Holmes v. State , 323 S.W.3d 163, 173

- 74 (Tex. Crim. App. 2009).....................

.... . 7

Parker v. Matthews
, 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012)

.................... 11

Penry v. State , 903 S.W.2d 715, 764 (Tex. Cri m. App. 1995).............................. ....8

Robison v. State , No. 14

- 13

- 00682

- CR,

-- S.W.3d

-- , 2015 WL 293269, at *9 (Tex. App.

— Houston [14th Dis t.] Jan. 22, 2015, no pet h.).......................................... .....9
Woodfox v. Cain , 609 F.3d 7 74, 806 (5th Cir.20 10) ...............................................11

Willis v. State , 785 S.W.2d 378, 385 (Tex. Crim. App. 1989)

............................. ... 115 STATUTES AND RULES
Tex. R. App. Proc. 25.2

.......................................... ........................................... ........ 7
Tex. R. App. P. 66.3

.......................................................................................... ........ 9
Tex. R. App. Proc. 68.4

.......................................................... .......................... .........16 TO THE COURT OF CRIMINAL APPEALS:

STATEMENT OF THE CASE
An investigation conducted by Investigator Nassar Foty of the Harris County
Precinct 4 Constable’s office resulted in Appellants conviction for three counts of
possession of child pornography . (III R.R. at 21; V. R.R. at 25). Foty obtained a
search warrant after identifying child pornography available for sharing through
Appellant’s IP address. (III R.R. at 21). The search yielded images and video

consistent with child pornography. (IV R.R. at 20). Appellant testified at trial that
he possessed the material at issue for a bona fide educat ional purpose. (IV R.R. at
53). Appellant attempted to introduce two books he wrote to show that he was
studying child pornography because he wanted to write solutions in the more

recent book on how to solve the real problem of children being abused. (IV R.R. at

66, 84, 86

- 88). The trial court sustained the State’s objection and excluded
admission of both books, preventi ng Appellant from presenting the affirmative

de fense of possession of child pornography for a bona fide educational purpose.

(IV R.R. at 66, 86

- 88 )

.
STATEMENT OF PROCEDURAL HISTORY
On December 19, 2011, Appellant was charged by indictment with three

c ounts of Possession of Child Pornography in Cause Nos. 1324897, 1324898, and

1324899. (C.R. at 17 for Cause No. 1324897; C.R. at 16 for Cause No. 1324898;7 C.R. at 14 for Cause No. 1324899). Appellant was brought to trial on June 17,

2013. (II R.R. at 1) . Appellant entered a plea of not guilty to all charges. (III R.R.
at 6). The jury found Appellant guilty of all three charges of Possession of Child
Pornography. (V. R.R. at 25). The jury assessed his punishment for all three cases

at confinement in t he Texas Department of Criminal Justice for 10 years and a fine

of $10,000 and recommended that the sentences be probated. (VII R.R. at 4

- 5).
Appellant gave timely notice of appeal in accordance with Tex. R. App. Proc.

25.2(a)). (C.R. 138

- 139, 153 for C ause No. 1324897; C.R. 136

- 37, 152 for Cause

No. 1324898; C.R. 134

- 35, 150 for Cause No. 18324899
On January 22, 2015, the Fourteenth Court of Appeals affirmed the
judgment s of the trial court. Robison v. State , No. 14

- 13

- 00682

- CR,

-- S.W.3d

-- ,
2015 WL 293 269, at *9 (Tex. App.

— Houston [14th Dist.] Jan. 22, 2015, no pet
h.). No motion for rehearing was filed. Appellant now timely petitions this
Honorable Court for discretionary review.
Appellant presents two ( 2 ) grounds for review before this Honorable Court.

APPELLANT’S FIRST GROUND FOR REVIEW
Is the denial of admission of books, which were authored by Appellant and which outlined Appellant’s affirmative defense, into evidence constitutional error requiring the Court of Appeals to determine whether it w as satisfied that the error did not contribute to Appellant’s conviction beyond a reasonable doubt?8 ARGUMENT

I f the appellate record reveals a constitutional error the court must reverse a
judgment of conviction
, unless it determines beyond a reasonable doubt that the

error did not contribute to the conviction. Holmes v. State , 323 S.W.3d 163, 173

- 74 (Tex. Crim. App. 2009). Appellant complained in Issue Number One of
Appellant’s Brief that the trial court’s exclusion of Appellant’s two books is

reversi ble error because it denied him the right to present the affirmative defense of
possession of child pornography for a bona fide educational purpose. Robison v.

State , No. 14

- 13

- 00682

- CR,

-- S.W.3d

-- , 2 015 WL 293269, at *2 (Tex. App.

—
Houston [14th Dist.] Ja n. 22, 2015, no pet h.). Specifically , Appellant complained

that he had the right to present a defense under the Sixth Amendment to the United

States Constitution and Article I, section 10 of the Texas Constitution. ( Appellant’s

Brief at p. 9). The Court of Appeals conduct ed a nonconstitutional error harm
analysis without deciding that the books should have been admitted

. Robison
, 2015 WL 293269, at *3.

W hether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘ a meaningful

opportunity to present a complete defense .’ ” Holmes v. South Carolina , 547 U.S.

319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006) ( quoting Crane v.9 Kentucky , 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636) (1986) (emphasis

added)

. T he denial of the right to present a defense is constitutional error and the
Court of Appeals erred by conducting a nonconstitutional harm analysis in
Appellant’s case after the trial court sustained the state’s objection to the admission
of Appellant’s books

. In the instant case the Court of Appeals erred by limiting its review to
whether the exclusion of the books affected Appellant’s substantial rights instead
of whether the Court was satisfied beyond a reasonable doubt that the error did not

cont ribute to Appellant’s conviction. T he Court of Appeals analyze d harm under
an incorrect legal standard because Appellant specifically complained that he was
denied the right to present a defense
, and the right to present a defense is

constitutional error . The appropriate review in this circumstances pursuant to Tex.
R. App. P. 66.3(c). T his case should be remanded to the Court of Appeals to
conduct a prop er harm analysis

.
APPELLANT’S SECOND GROUND FOR REVIEW

In Penry v. State , Cook v. State and Estrada v. State , did this Court , by deciding that a contemporaneous objection is always required to preserve prosecutorial misconduct for appellate review , decide an important question of state law in conflict with the Supreme Court of United States which holds that prosecutorial misconduct is fundamental error ?10 ARGUMENT
Appellant complained in Issue Number Three of Appellant’s Brief that the

prosecutor engag ed in misconduct by asking improper questions and making
improper comments during trial and closing argument. Robison v. State , No. 14

-

13

- 00682

- CR,

-- S.W.3d

-- , 2015 WL 293269, at *9 (Tex. App.

— Houston [14th
Dist.] Jan. 22, 2015, no pet h.). Appellant com plained the prosecutor engaged in

pr osecutorial misconduct: 1) by continuously questioning Appellant, and
witnesses, regarding the invocation of Appellant’s right to remain silent
, and 2) by

the improper use of Appellant’s silence to impeach his trial test imony

. ( Appellant’s brief at pg. 24). Appellant further complained the errors violated his
fundamental right to a fair trial because the errors deprived him of the r ight to be
free from compelled self

- incrimination under the Texas and Federal Constitutio n

and eviscerated his affirmative defense of possession of child pornography for a
bond fide educational purpose, which was the sole contested issue during trial.
Citing Hajjar v. State , t he Court of Appeals overruled the issue stating,
“error regarding p rosecutorial misconduct must be preserved by a timely objection
at trial, followed by a ruling or a refusal to rule from the trial court.” Hajjar , 176
S.W. 3d 554, 566 (Tex. App.

— Housto n [1st. Dist] 2004, pet. ref’d). Hajjar , which

relies on Cook v. Stat e and Penry v. State , stands for the proposition that an11 objection is the proper method for preserving error in cases of prosecutorial

misconduct. Id

. Hajjar’s reliance on Cook and Penry is misplaced.

In Cook v. State
, this Court held that to prese rve a jury argument error for
appellate review the defendant must make an objection, request an instruction to
disregard, and make a motion for mistrial. Cook , 858 S.W.2d 467, 473 (Tex. Crim.

App. 1993) (citing Coe v. State , 683 S.W.2d 431, 436 (Tex. Crim . App. 1984). In

Penry v. State , the defendant moved for a mistrial based on an improper jury
argument made by the State but failed to make a contemporaneous objection or
move for an instruction to disregard. Penry , 903 S.W.2d 715, 764 (Tex. Crim.

App. 1 995). R eliance on both of these case s is misplaced because the defendant in

Cook and Penry alleged on appeal that the prosecutor’s argument was improper but
did not allege, as Appellant has, that prosecutorial misconduct had occurred. Id . at

473.

In E strada v. State , this Court held the defendant failed to preserve for
appellate review any error in the State's opening statement and closing argument

when he failed to object or ask for a mistrial

. Estrada , 313 S.W.3d 274 , 303 (Tex.
Crim. App. 2010). De fendant argued on appeal he was deprived of a fair tria l
because of repeated prosecutorial misconduct that occurred during the guilt
innocence phase of his trial

. Id

. This Court declined to address the defendant’s

argument c iting Cockrell v. State as the case that overruled the exception Willis v.12 State

. Id

. ; Cockrell , 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (citing Willis
, 785
S.W.2d 378, 385 (Tex. Crim. App. 1989); overruling recognized by Estrada , 313

S.W.3d at 303 (acknowledging a now overruled excepti on to the waiver rule for
cases in which the prosecutor's argument is so egregious that no instruction to
disregard could possibly cure the harm)

.

I n Darden v. Wainwright , 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144

(1986), the United States Su preme Court explained that a prosecutor's improper

comments violates constitutional principals if it “ ‘so infected the trial with
unfairness as to make the resulting convicti on a denial of due process.’ ” (quoting

Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.C t. 1868, 40 L.Ed.2d 431
(1974)). The Fifth Circuit has explained that to establish that the prosecutor's

remarks were be so inflammatory as to violate due process , the defendant must

demonstrate the misconduct was persistent and pronounced or the evidence of guilt
was so insubstantial the conviction would not have occurred but for the improper

remarks. Woodfox v. Cain , 609 F.3d 774, 806 (5th Cir.20 10) (holding “Improper
prosecutorial remarks are constitutionally unfair only if they are persiste nt and
pronounced, or if the evidence is so weak that no conviction would have occurred

but for the remarks.”). In Parke r v. Matthews , the United States Supreme Court
stated that the Sixth Circuit erred by consulting its own precedents rather than the

pre cedent set by the Supreme Cour t. 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 3213 (2012) . In that case, the prosecutor made inappropriate remarks during closing

argument constituting prosecutorial misconduct. Id . at 2154.

In this case, the Court of Appeals an d this court erred by consulting its own
precedents rather than the precedent set by the Supreme Court and the
prosecutorial misconduct was persistent and pronounced which required the Court
of Appeals to determine whether Appellant’s due process rights we re violated

. The prosecutor repeatedly alluded to Appellant’s s ilence both in argument and
during the questioning of Appellant and his witnesses. The result was the denial of
Appellant’s right to testify free from improper impeachment and denial of a fai r
trial in violation of fundamental due process rights. Under Parker and Darden , an
appellate court should conduct an analysis to determine whether the prosecutor’s

argument so infected the trial with unfairness as to make the resulting conviction a

denia l of due process rather than summarily dismissing the error because an
objection was not made. If the reviewing court determines the prosecutor’s
misconduct did not infect the trial with unfairness then the contemporaneous
objection rule should apply. Ho wever, if the reviewing court determines the

remarks did infect the trial with unfairness then in accordance with United States
Supreme Court precedent an objection should not be required to preserve the claim
for appellate review

.14 In holding that prosec utorial misconduct always requires an objection to
preserve review, the Court of Appeals and this Court has decided an important
question law in a way that conflicts w ith the applicable decisions of the Supreme

Court of the United States such that discreti onary review in this matter is warranted
pursuant to Tex. R. App. P. 66.3(c). Accordingly, review is warranted pursuant to

Tex. R. App. P. 66.3(c).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED , Appellant prays that this

Hono r a ble Court grant this Pet ition for Discretionary Review. Following the grant
of review, Appellant prays that the judgment of the Court of Appeals be reve rsed

and a new trial ordered, or the case remanded for further review.
Respectfully submitted,

/s/ Nicole DeBorde Nicole DeBorde B IRES S CHAFFER AND D E B ORDE Texar Bar No. 00787344 712 Main Street, Suite 2400 Houston, Texas 77002 (713) 228

- 8500

– Telephone (713) 228

- 0034

– Facsimile Email: Nicole@BSDLawFirm.com
Attorney for Appellant, MARK DOUGLAS ROBISON15 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
counsel of record certifies that the Petition for Discretionary Review contains 2, 682

words.

/s/ Nicole DeBorde Nicole DeBorde16 CERTIFICATE OF SERVICE
I hereby certify that a true copy of Appellant’s petition for discretionary
review has been either personally served upon or mailed by U.S. Postal Service

certified mail, return receipt requested, on March 3, 2015
, to the following persons:

Devon Anderson District Attorney 1201 Franklin, Suite 600 Houston, Texas 77002
State Prosecuting Attorney P.O. Box 12405 Austin, Texas 78711
Respectfully submitted,

/s/ Ni cole DeBorde Nicole DeBordeA

- 1 A P P E N D I X