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 & 1324899

IN THE 351ST 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 DOUGLAS 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

CLERK
1

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. PROC. 68.4(c), appellant requests oral argument.

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mark Douglas Robison

PRESIDING JUDGE: Hon. Susan Brown

351st District Court

1201 Franklin

Houston, Texas 77002

TRIAL PROSECUTORS: Shannon Davis

Lacy Johnson

Assistant District Attorneys

1201 Franklin

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Thomas A. Martin

Attorney at Law

1018 Preston, Suite 500

Houston, Texas 77002

STATE’S APPELLATE COUNSEL: Hon. Devon Anderson

Harris County District Attorney

1201 Franklin

Houston, Texas 77002

Jessica Akins

Assistant District Attorney 

1201 Franklin

Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Nicole DeBorde

Attorney at Law

712 Main Street, Suite 2400

Houston, Texas 77002
2

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................vi, v

STATEMENT REGARDING ORAL ARGUMENT ................................................i

STATEMENT OF THE CASE.................................................................................vi 

STATEMENT 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 Court of United States which holds that 

prosecutorial misconduct is fundamental error?

ARGUMENT...........................................................................................................10

PRAYER FOR RELIEF ..........................................................................................14

CERTIFICATE OF COMPLIANCE.......................................................................15
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CERTIFICATE OF SERVICE ................................................................................16

APPENDIX........................................................................................................... A-1
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INDEX OF AUTHORITIES

CASES PAGE

Cockrell, 933 S.W.2d 73, 89 (Tex.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

Crane 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.Ct. 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. Crim. App. 1995)..................................8

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.)...............................................9

Woodfox v. Cain, 609 F.3d 774, 806 (5th Cir.2010)...............................................11

Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989)................................11
5

STATUTES AND RULES

Tex. R. App. Proc. 25.2.............................................................................................7

Tex. R. App. P. 66.3..................................................................................................9

Tex. R. App. Proc. 68.4.............................................................................................1
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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 educational 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, preventing Appellant from presenting the affirmative 

defense 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 

counts 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 the 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 Cause 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 

judgments of the trial court. 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.). 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 was satisfied that the error did 

not contribute to Appellant’s conviction beyond a reasonable 

doubt?
8

ARGUMENT

If 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 

reversible 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--, 2015 WL 293269, at *2 (Tex. App.—

Houston [14th Dist.] Jan. 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 conducted a nonconstitutional error harm 

analysis without deciding that the books should have been admitted. Robison,

2015 WL 293269, at *3. 

Whether 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). The 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 

contribute to Appellant’s conviction. The Court of Appeals analyzed 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). This case should be remanded to the Court of Appeals to 

conduct a proper 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 engaged 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 complained the prosecutor engaged in 

prosecutorial 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 testimony.

(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 right to be 

free from compelled self-incrimination under the Texas and Federal Constitution 

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, the Court of Appeals overruled the issue stating, 

“error regarding prosecutorial 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.—Houston [1st. Dist] 2004, pet. ref’d). Hajjar, which 

relies on Cook v. State and Penry v. State, stands for the proposition that an 
11

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 preserve 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. 1995). Reliance on both of these cases 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 Estrada 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). Defendant argued on appeal he was deprived of a fair trial 

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 citing 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 exception 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). 

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

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

comments violates constitutional principals if it “ ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.’ ” (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 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.2010) (holding “Improper 

prosecutorial remarks are constitutionally unfair only if they are persistent and 

pronounced, or if the evidence is so weak that no conviction would have occurred 

but for the remarks.”). In Parker v. Matthews, the United States Supreme Court 

stated that the Sixth Circuit erred by consulting its own precedents rather than the 

precedent set by the Supreme Court. 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 
13

(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 and 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 were violated. 

The prosecutor repeatedly alluded to Appellant’s silence 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 fair 

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 

denial 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. However, 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 prosecutorial 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 with the applicable decisions of the Supreme 

Court of the United States such that discretionary 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 

Honorable Court grant this Petition for Discretionary Review. Following the grant 

of review, Appellant prays that the judgment of the Court of Appeals be reversed 

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

Respectfully submitted,

/s/ Nicole DeBorde

Nicole DeBorde

BIRES SCHAFFER AND DEBORDE

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 ROBISON
15

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 DeBorde
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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/ Nicole DeBorde

Nicole DeBorde
A-1

A P P E N D I X