     PD-0214&0215&0216-15                                  February 26, 2015



                  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
                    STATEMENT REGARDING ORAL ARGUMENT

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

                                        TABLE OF CONTENTS

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

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ..............................................vi

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

STATEMENT OF PROCEDURAL HISTORY..................................................... vii

GROUND FOR REVIEW NUMBER ONE .............................................................. 6

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

GROUND FOR REVIEW NUMBER TWO ............................................................. 8

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

PRAYER FOR RELIEF ..........................................................................................13

                                                          1
CERTIFICATE OF COMPLIANCE .......................................................................14

CERTIFICATE OF SERVICE ................................................................................15

APPENDIX ........................................................................................................... A-1




                                                           2
                                         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




                                                               3
STATUTES AND RULES

Tex. R. App. Proc. 25.2.............................................................................................6

Tex. R. App. P. 66.3..................................................................................................8

Tex. R. App. Proc. 68.4.............................................................................................1




                                                           4
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;
                                         5
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?

                                          6
                                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.
                                          7
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?



                                          8
                                   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


                                          9
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.
                                        10
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
                                           11
(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.


                                        12
      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

                                         13
                        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 2,580

words.


                                              /s/ Nicole DeBorde
                                              Nicole DeBorde




                                         14
                           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 February 23, 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




                                       15
APPENDIX




   A-1
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   Location                                     Court Of Criminal Appeals
   Date Filed                                   02/23/2015 03:43:37 PM
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   Attorney                                     Nicole DeBorde
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   Petition for Discretionary Review
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   Attachments                    Opinion.pdf                                                [Original]




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