PD -1385-15 through PD -1388

- 15

TO THE COURT OF CRIMINAL APPEALS

OF TEXAS

________________ 

## W ILLIAM 

## J AMES 

## A KIN , Appellant

v . 

## T HE 

## S TATE OF 

## T EXAS , Appellee

________________ On Appeal in Cause No s. CR -13-24 791, CR-13-24795, CR-13-24796, and CR- 13 -24799

From the 336 th 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

__________________________________________________________________



# S TATE 

# ’ S 

# R ESPONSE TO 

# P ETITION FOR 

# D ISCRETIONARY 

# R EVIEW

__________________________________________________________________ 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 CLERKi 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

- adm itted evidence when it analyzes harm.

................................ .............. 4

CONCLUSION

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

PRAYER

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

CERTIFICATE OF COMPLIANCE

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

CERTIFICATE OF SERVICE

................................ ................................ .................. 8ii 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

T EX

. R. A PP

. P . 44.2(a)

................................ ................................ ............................... 4

T EX

. R. A PP

. P . 66.2

................................ ................................ ................................ ... 2

T EX

. R. A PP

. P. 66.3

................................ ................................ ............................... 2, 31 PD

- 1385

- 15 through PD

- 1388

- 15

TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

________________



## W ILLIAM 

## J AMES 

## A KIN , Appellant

V.


## T HE 

## S TATE OF 

## T EXAS , Appellee

________________ TO THE HONORABLE COURT O F 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 cause s

.

STATEMENT R EGARDING 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 wrongly

admitted evidence when it analyzes harm

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

sound discretion. T EX

. R. A PP

. 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 “erro r 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 T E X

. R. A PP

. 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 corr ection 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 its3

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 tha t the lower court’s opinion conflicts with

th ose of this Court and with other court s of appeals. See T EX

. R. A PP

. P. 66.3

.
However i n reality
, his complaint simply asks this Court to reconsider the appellate

court’s harm a nalysis 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 t hat 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 unchal lenged
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

corro borated 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 the4

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 insuffic ient to require further review. Degrate v. State
, 712 S.W.2d 755, 756 (Tex. Crim. App. 1986) . Because Petitioner has d one 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 err or, a reviewing court must not

reverse a judgment unless a substantial right of the defendant is affected

. T EX

. R.

A PP

. 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 evi den ce
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 , 1135

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 som e 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 conclusi on 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 esta blished 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 of6

im plementing 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 shoul d not
grant discretionary review simply to revisit a lower court’s routine application of
established precedent to an otherwise unremarkable s et of facts

.
CONCLUSION

Petitioner asks this Court to review a fact

- specific decision of the court of
appeals that has l ittle 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 significa nt 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 P RAYER

WHEREFORE, PREMISES CONSIDERED, t he State of Texas respectfully
prays this Court deny the pe tition for d iscretionary r eview

. The State further
requests all such additional relief as may be deem ed just and appropriate.

D a ted: November 10 , 2015 Respectfully submitted,

/s/ J ohn 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

- 76 82 (fax)

CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing document contains 1,1 4 8
words, exclusive of the portions described by T EX

. R. A PP

. 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, Texas8 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing was served electron ically to the individual s listed below on this the 10 th

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. B onham, T exas 75418 ATTORNEY FOR APPELLANT

L isa McMinn P.O. Box 12405 Austin, Texas 78711 STATE PROSECUTING ATTORNEY