PD-0765-15, PD-0766-15

TO THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

________________ 

THOMAS LLOYD TAUNTON, 

 Appellant 

v. 

THE STATE OF TEXAS, 

 Appellee 

________________ 

On Appeal in Cause Nos. CR-12-24098 and CR-13-24755 

From the 336th District Court 

of Fannin County, 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-0765&0766-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/9/2015 3:21:59 PM

Accepted 7/9/2015 5:10:10 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

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. The court of appeals correctly followed this Court’s precedent in 

analyzing the effect of constitutional error in the trial court. ................................2

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

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

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

The court of appeals correctly followed this Court’s precedent in analyzing 

the effect of constitutional error in the trial court..................................................4

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

PRAYER....................................................................................................................6

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

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

INDEX OF AUTHORITIES

Cases

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) ......................................3

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990).....................................3, 4

Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011)............................ 3, 4, 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-0765-15, PD-0766-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

________________

THOMAS LLOYD TAUNTON,

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 two convictions, one for the murder of a single 

individual and one for the capital murder of multiple persons. The court of appeals 

affirmed Appellant’s convictions and sentences of life and life without parole, 

respectively.
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. The court of appeals correctly followed this Court’s precedent in analyzing 

the effect of constitutional error in the trial court.

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.

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 not to 

suppress evidence seized under a warrant. The court of appeals found that the 

warrant was unsupported by probable cause and that the trial court’s decision not 

to suppress evidence was indeed error. However, it also considered the error to be 

harmless beyond a reasonable doubt, and affirmed Petitioner’s convictions. 
3

Petitioner now complains that the court of appeals did not properly consider harm 

in light of all the evidence presented at trial.

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

Texas. Appellant does not argue that this standard should be extended or changed, 

or that there is a conflict between the lower court’s opinion and that of another 

court of appeals. See TEX. R. APP. P. 66.3. Rather, his complaint asks this Court 

to take up the fact-specific question of whether the court of appeals “properly” 

considered harm. Although he nominally claims that the lower court decided the 

case against this Court’s holding in Snowden v. State,

1 his argument effectively 

sets up a straw-man by likening the lower court’s reasoning to that in Harris v. 

State,

2 which Snowden partially overruled. In reality, the court never mentioned 

Harris or its disavowed standard, and instead based its decision on the totality of 

the record and the valid precedent of this Court. 

Moreover, even if Petitioner’s argument was correct, at no point does he 

explain how his complaint rises to the level that would compel this Court to 

exercise its discretionary jurisdiction. 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 

 1 353 S.W.3d 815 (Tex. Crim. App. 2011).

2 790 S.W.2d 568 (Tex. Crim. App. 1990).
4

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.

The court of appeals correctly followed this Court’s precedent in analyzing 

the effect of constitutional error in the trial court.

When confronted with constitutional error, a reviewing court must reverse 

the judgment unless it can conclude beyond a reasonable doubt that the error did 

not contribute to the defendant’s conviction or punishment. TEX. R. APP. P. 

44.2(a); Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011). While 

this Court has attempted to delineate factors that a court should consider when 

reviewing constitutional harm,3 it has disavowed any “set formula.” Id. at 822, 

n.31. Instead, while certain factors may prove helpful to a reviewing court, they do 

not form an exhaustive checklist, and harm analysis for constitutional error should 

take into account “any and every circumstance apparent in the record that logically 

informs [the] determination” of whether an error was harmless beyond a 

reasonable doubt. Id.

Petitioner seems to say that Snowden prohibits an appellate court from 

considering the remaining strength of the State’s case apart from the suspect 

evidence. He complains that the lower court simply resorted to “what it considered 

the overwhelming evidence of guilt” in making its determination that the trial 

 3 See, e.g., Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990).
5

court’s error was harmless (Pet. at 6). Not only is this a misreading of Snowden, 

but it ignores the logic, not to mention the very words, of the opinion. 

First, Snowden does not repudiate consideration of the overall strength of the 

State’s case as a factor to be considered when addressing constitutional harm. 

Indeed, Snowden repeats the Harris Court’s earlier conclusion that the error must 

be analyzed “in the context of the trial as a whole” and, if the court finds that the 

error was “unimportant in relation to everything else the jury considered on the 

issue in question, as revealed in the record,” then it can say that the error did not 

contribute to the verdict. 353 S.W.3d at 819 and n.15.

Second, the opinion of the court below does not merely rely on the strength 

of the State’s case, but takes care to methodically consider all of the circumstances 

in the record that impact the question of harm beyond a reasonable doubt. For 

example, it notes that the evidence subject to the warrant was largely peripheral 

and corroborative of other evidence, and that it had little if any direct relation to 

the ultimate question of Petitioner’s guilt. While the opinion does address the 

strength of the State’s case – which was, after all, largely supported by the 

Petitioner’s own detailed and completely spontaneous confession – it does so as a 

means of explaining just why the admission of the seized evidence was not 

harmful. Far from simply saying that the Petitioner “would have been convicted in 
6

any event,”4 the court’s opinion makes use of the entire record and explains that, 

relative to the other evidence of Petitioner’s guilt, the evidence subject to 

suppression was so minimal and peripheral that its inclusion did not affect the 

outcome of the trial. This is nothing more than the proper application of the Rule 

44.2(a) harm standard as announced in Snowden. As such, the petition for 

discretionary review should be denied.

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 constitutional harm analysis 

and substitute in its place an illogical and unduly restrictive analysis that would 

ignore the totality of evidence presented at trial in favor of a myopic inspection of 

a tarnished fraction. Because his complaint is not significant enough to warrant 

further review, and because it fails to give sufficient reason for such a drastic 

modification of existing law, this Court should decline to exercise discretionary 

review and deny the petition.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully 

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

 4 See Harris, 790 S.W.2d at 585.
7

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

Dated: July 9, 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 1,193

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 9th

day of July, 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