PD-1385-15 through PD-1388-15

TO THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

________________ 

WILLIAM JAMES AKIN, 

 Appellant

v.

THE STATE OF TEXAS, 

 Appellee

________________ 

On Appeal in Cause Nos. 

CR-13-24791, CR-13-24795, CR-13-24796, and CR-13-24799 

From the 336th District Court 

of Fannin County, Texas, 

and in Cause Nos. 06-14-00178-CR through 06-14-00181-CR

From the Sixth Court of Appeals 

In Texarkana, Texas 

 __________________________________________________________________ 

STATE’S RESPONSE TO 

PETITION FOR DISCRETIONARY REVIEW

 __________________________________________________________________ 

John B. Setterberg 

State Bar No. 24043915 

Assistant Criminal District Attorney 

Fannin County, Texas 

101 E. Sam Rayburn Dr., Ste. 301 

Bonham, Texas 75418 

903-583-7448 

903-583-7682 (fax) 

ATTORNEY FOR THE STATE 

PD-1385_1388-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 11/10/2015 1:13:00 PM

Accepted 11/10/2015 4:26:31 PM

ABEL ACOSTA

CLERK
i

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................... i

INDEX OF AUTHORITIES..................................................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

REPLIES TO QUESTION FOR REVIEW...............................................................2

ARGUMENT.............................................................................................................2

1. Petitioner seeks mere correction of what he considers to be error, rather 

than resolution of an important and unresolved issue in Texas jurisprudence......2

2. Petitioner requests that which has already been given. Established 

precedent requires an appellate court to consider the prejudicial effect of 

wrongly-admitted evidence when it analyzes harm...............................................4

CONCLUSION..........................................................................................................6

PRAYER....................................................................................................................7

CERTIFICATE OF COMPLIANCE.........................................................................7

CERTIFICATE OF SERVICE ..................................................................................8
ii

INDEX OF AUTHORITIES

Cases

Baxter v. State, 66 S.W.3d 494 (Tex. Crim. App. 2001).......................................3, 4

Bradley v. State, 235 S.W.3d 808 (Tex. Crim. App. 2007).......................................2

Degrate v. State, 712 S.W.2d 755 (Tex. Crim. App. 1986) ......................................4

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)...............................5

Russell v. State, 113 S.W.3d 530 (Tex. App. – Ft. Worth 2003)...............................5

Rules

TEX. R. APP. P. 44.2(a)...............................................................................................4

TEX. R. APP. P. 66.2 ...................................................................................................2

TEX. R. APP. P. 66.3 ...............................................................................................2, 3
1

PD-1385-15 through PD-1388-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

________________

WILLIAM JAMES AKIN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

COMES NOW the State of Texas, Appellee, by and through her assistant

criminal district attorney, and respectfully submits this Response to Petition for 

Discretionary Review in the above-styled and numbered causes.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

This is an appeal from several convictions for child sexual abuse. The court 

of appeals determined that admission of certain photographs at the guilt/innocence 

stage of trial was error, but that the error was harmless. The court therefore 

affirmed each of Appellant’s convictions and sentences.
2

REPLIES TO QUESTION FOR REVIEW

1. Petitioner seeks mere correction of what he considers to be error, rather than 

resolution of an important and unresolved issue in Texas jurisprudence.

2. Petitioner requests that which has already been given. Established precedent 

requires an appellate court to consider the prejudicial effect of wronglyadmitted evidence when it analyzes harm.

ARGUMENT

Discretionary review by this Court is not a matter of right, but of the Court’s 

sound discretion. TEX. R. APP. P. 66.2. The principle role of this Court, as a court 

of last resort, is as the caretaker of Texas law. Bradley v. State, 235 S.W.3d 808, 

810 (Tex. Crim. App. 2007). It is not a court of “error correction,” and does not 

exist merely to re-consider issues that a court of appeals has already decided. Id. 

Rather, the legal issues brought to and considered by this Court should be “of great 

importance to the jurisprudence of the state.” Id.; see TEX. R. APP. P. 66.3.

Otherwise, this Court should not to expend its “scarce judicial resources” to review 

an opinion of a court of appeals. Bradley, 235 S.W.3d at 809.

1. Petitioner seeks mere correction of what he considers to be error, rather 

than resolution of an important and unresolved issue in Texas 

jurisprudence.

In the court below, Petitioner claimed error in the trial court’s decision to 

admit evidence of pornography and internet searches taken from his computer. The 

court of appeals found that the visual evidence of the pornography – screen shots 

of open webpages and of Petitioner’s search history – was irrelevant and its 
3

admission was indeed error. However, it also considered the error to be harmless 

and affirmed Petitioner’s convictions. Petitioner now complains that the court of 

appeals did not properly consider harm.

The standard for harm analysis of non-constitutional error is well settled in 

Texas. Petitioner nominally argues that the lower court’s opinion conflicts with 

those of this Court and with other courts of appeals. See TEX. R. APP. P. 66.3. 

However in reality, his complaint simply asks this Court to reconsider the appellate 

court’s harm analysis and reach a different result. 

Petitioner appears to summarize the lower court’s analysis as “whether there 

was enough evidence to support the result.” This ignores the very text of the 

opinion. The court of appeals acknowledged the requirement that a reviewing 

court consider harm in light of all of the evidence presented at trial. See Baxter v. 

State, 66 S.W.3d 494, 499 (Tex. Crim. App. 2001). While the court of appeals did 

consider testimony describing the complained-of images as “other unchallenged 

evidence prov[ing] the same facts,” it also considered the victim’s “clear account” 

of the assault, the testimony of two eyewitnesses who saw Petitioner acting 

inappropriately with the victim, and the testimony of the victim’s step-mother, who 

corroborated the victim’s outcry. It weighed the likely impact of the images against 

the bulk of the evidence against Petitioner, in light of the emphasis placed on them 

in the State’s arguments, and determined that it had a “fair assurance that the 
4

improperly admitted evidence did not influence the jury, or would have only a 

slight influence on the jury.” This is precisely what the law requires. 

The assertion that the court of appeals was in error as to some point of law, 

standing alone, is generally insufficient to require further review. Degrate v. State, 

712 S.W.2d 755, 756 (Tex. Crim. App. 1986). Because Petitioner has done little 

more than ask for a “re-do” of the lower court’s opinion, and because the issue he 

raises is fact-specific and of little value to the State’s jurisprudence as a whole, this 

Court should decline to exercise its discretionary authority and should deny the 

petition.

2. Petitioner requests that which has already been given. Established 

precedent requires an appellate court to consider the prejudicial effect 

of wrongly-admitted evidence when it analyzes harm. 

When confronted with non-constitutional error, a reviewing court must not 

reverse a judgment unless a substantial right of the defendant is affected. TEX. R.

APP. P. 44.2(b). If, after examining the entire record, the court has “a fair 

assurance that the error did not influence the jury, or had but a slight effect,” then 

the error should be disregarded as harmless. Baxter v. State, 66 S.W.3d 494, 499 

(Tex. Crim. App. 2001). The question is not whether there was sufficient evidence 

to support the conviction apart from that which was erroneously admitted. Rather, 

it is whether the tainted evidence, in the context of the entire trial, so undermined 

the jury’s decision-making as to cast doubt on the verdict. Russell v. State, 113 
5

S.W.3d 530, 549-50 (Tex. App. – Ft. Worth 2003). The key to this analysis is that 

the error is considered in context, and the magnitude of its harm judged in light of 

every other relevant argument, exhibit, and comment to the jury. See Baxter, 66

S.W.3d at 499.

Petitioner asks this Court to implement an entirely new and undefined harm 

analysis for non-constitutional error. Purportedly, this new standard would be 

based on the factors discussed in Montgomery v. State for evaluating the admission 

of evidence under Rule 403. 810 S.W.2d 372, 377 (Tex. Crim. App. 1991). 

Petitioner does not explain what this new test would look like, other than to include 

a consideration of whether wrongfully-admitted evidence has a potential “to 

impress the jury in some irrational, yet indelible way.” This, of course, would 

require a reviewing court to evaluate the impact of tainted evidence in light of 

everything else at trial – something an appellate court is already required to do –

and to reach a subjective conclusion about the likelihood of improper influence on 

the verdict (something it must also do). Petitioner further posits that the burden of 

showing harm should not be on the Appellant, but “on the party who gained by the 

evidence.” This is likewise already established law, as a defendant is not required 

to prove harm, and an appellate court is instead obligated to judge harm from the 

context of the error. Russell, 113 S.W.3d at 550.

In short, Petitioner asks this Court to grant review for the vague purpose of 
6

implementing a new standard of harm analysis, which from all appearances is the 

same as the standard currently in place and used by the court of appeals. This new 

standard, such as it is, is neither preferable nor necessary, and this court should not 

grant discretionary review simply to revisit a lower court’s routine application of 

established precedent to an otherwise unremarkable set of facts. 

CONCLUSION

Petitioner asks this Court to review a fact-specific decision of the court of 

appeals that has little if any impact on the rest of Texas jurisprudence. Moreover, 

he asks this Court to overrule a proper application of non-constitutional harm 

analysis and substitute in its place a virtually identical replacement. Because his 

complaint is not significant enough to warrant further review, and because it fails 

to give sufficient reason for such a “modification” of existing law, this Court 

should decline to exercise discretionary review and deny the petition.
7

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully 

prays this Court deny the petition for discretionary review. The State further 

requests all such additional relief as may be deemed just and appropriate.

Dated: November 10, 2015

Respectfully submitted,

/s/ John B. Setterberg

John B. Setterberg

State Bar No. 24043915

Assistant Criminal District Attorney

Fannin County, Texas

101 East Sam Rayburn Dr., Suite 301

Bonham, Texas 75418

903-583-7448

903-583-7682 (fax)

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing document contains 1,148

words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as 

computed by the computer program used to prepare the document.

/s/ John B. Setterberg

John B. Setterberg

Assistant Criminal District Attorney

Fannin County, Texas
8

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing was served electronically to the individuals listed below on this the 10th

day of November, 2015.

/s/ John B. Setterberg

John B. Setterberg

Assistant Criminal District Attorney

Fannin County, Texas

Steven R. Miears

211 North Main St.

Bonham, Texas 75418

ATTORNEY FOR APPELLANT

Lisa McMinn

P.O. Box 12405

Austin, Texas 78711

STATE PROSECUTING ATTORNEY