                   PD-0765&0766-15

                  CAUSE NUMBER __________________




                  IN THE COURT OF CRIMINAL APPEALS
                       FOR THE STATE OF TEXAS

                      THOMAS LLOYD TAUNTON
                           PETITIONER

                                 v.

                        THE STATE OF TEXAS




PETITON IN TRIAL COURT CAUSE NUMBERS CR-12-24098, CR-13-24755
 FROM THE 336TH JUDICIAL DISTRICT COURT OF FANNIN COUNTY,
  TEXAS AND THE COURT OF APPEALS FOR THE SIXTH COURT OF
               APPEALS IN TEXARAKANA, TEXAS
         CASE NUMBERS 06-14-00159-CR AND No. 06-14-00160-CR




              PETITION FOR DISCRETIONARY REVIEW

                               STEVEN R. MIEARS
                                 State Bar No. 14025600
                                 211 North Main
  June 25, 2015                  Bonham, Texas 75418
                                 Tel: 903-640-4963
                                 Fax: 903-640-4964
                                 Email: SteveMiears@msn.com
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                                          TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................. 2

INDEX OF AUTHORITIES.........................................................................................3

STATEMENT REGARDING ORAL ARGUMENT....................................................4

STATEMENT OF THE CASE .....................................................................................4

STATEMENT OF PROCEDURAL HISTORY...............................................................4

GROUND FOR REVIEW............................................................................................... .4

The Court of Appeals erred in limiting its analysis of whether the federal
constitutional error was harmless beyond a reasonable doubt to a focus on the weight
of the evidence of Petitioner’s guilt.

ARGUMENT..................................................................................................................5

PRAYER FOR RELIEF...........................................................................................7
APPENDIX (Copies of Opinions from Court of Appeals)
CERTIFICATE OF SERVICE.......... ..................................................................................7




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                            INDEX OF AUTHORITIES



Statutes, Codes, Constitutional Provisions, and Rules



Cases


Bell v. State, 415 S.W.3d 278, 280 (Tex. Crim. App. 2013). p. 5

Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). p.5

Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006). p. 5

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990). p.5

Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). p.5

Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011). pp. 4- 5

Taunton v. State, 2015 Tex. App. LEXIS 6234 (Tex. App. Texarkana June 19, 2015).
p.5

Taunton v. State, 2015 Tex. App. LEXIS 6233 (Tex. App. Texarkana June 19, 2015).
p. 4.




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               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is waived.



                            STATEMENT OF THE CASE
      This petition relates to two cases joined for trial and appeal. Petitioner was

convicted by a jury of capital murder and murder. He was sentenced to life without

parole for the capital murder, and life in prison for the murder. There are two opinions

from the Court of Appeals. Taunton v. State, 2015 Tex. App. LEXIS 6233 (Tex. App.

Texarkana June 19, 2015) [murder] and Taunton v. State, 2015 Tex. App. LEXIS 6234

(Tex. App. Texarkana June 19, 2015) [capital murder]. The opinion in the capital

murder case discusses the single issue raised on appeal in both cases. This Petition

relates to both cases as the issue is the same.


                   STATEMENT OF PROCEDURAL HISTORY
      The opinions of the Court of Appeals were handed down on June 19, 2915.

No motions for rehearing were filed.


                             GROUNDS FOR REVIEW



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      The Court of Appeals erred in limiting its analysis of whether the federal

constitutional error was harmless beyond a reasonable doubt to a focus on the

weight of the evidence of Petitioner’s guilt.

                                     ARGUMENT

      The Court of Appeals improperly limited its analysis of whether the

constitutional error was harmless. Review should be granted. In Snowden v. State, 353

S.W.3d 815 (Tex. Crim. App. 2011) this Court advised how to assess whether federal

constitutional error was harmless beyond a reasonable doubt. Snowden is never cited

by the Court of Appeals. Instead, the Court of Appeals cited the factors in Clay v. State,

240 S.W.3d 895, 904 (Tex. Crim. App. 2007), and it cited to Davis v. State, 203

S.W.3d 845 (Tex. Crim. App. 2006). See Taunton v. State, 2015 Tex. App. LEXIS

6234, p. 17 (Tex. App. Texarkana June 19, 2015).

      In Snowden, this Court emphasized that the factors earlier set forth in Harris v.

State, 790 S.W.2d 568 (Tex. Crim. App. 1990) were not to be the exclusive

considerations. And, the Court modified the Harris factors to include “the nature of the

error, whether it was emphasized by the State, the probable implications of the error,

and the weight the jury would likely have assigned to it in its deliberations.” See Bell v.

State, 415 S.W.3d 278, 280 (Tex. Crim. App. 2013). And, as this Court said in

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Snowden, there are many other considerations which may logically inform a proper

harm analysis in a case. Any circumstance apparent in the record should be considered.

Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).

         The Court of Appeals erred by focusing its analysis on what it considered the

overwhelming evidence of guilt. This Court has rejected that approach. A

constitutional error may not be deemed harmless simply because the reviewing court is

confident that the result the jury reached was correct. This Court has emphasized that

Rule 81(b)(2) requires reviewing courts to focus, not upon the perceived accuracy of

the conviction, but upon the error itself in the trial. Snowden v. State, 353 S.W.3d 815,

818-819 (Tex. Crim. App. 2011).

         Among the factors to be reviewed include “the probable implications of the

error.” Snowden, id. at 822. Included within these implications are trial choices that

only the Defendant can make. Here, after the trial court denied the motion to suppress,

the Petitioner absented himself from the trial, and only returned to testify. (RR Vol. 4

p. 8.) (RR Vol. 7 p. 5.) The Court of Appeals failed to consider how the constitutional

error may have affected his choices on these decisions that involve fundamental rights.

         By focusing on the weight of the evidence supporting guilt the Court of Appeals

erred.

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                            PRAYER FOR RELIEF

      This Court should grant review. After review, the Court should remand the

case back to the Court of Appeals for an analysis for harm.


                                   APPENDIX


      Copies of the two opinions of the Court of Appeals are attached.


                                                  RESPECTFULLY SUMITTED,
                                                          ____________________
                                                                   Steven R. Miears
                                                                     211 North Main
                                                              Bonham, Texas 75418
                                                              Stevemiears@msn.com
                                                                  Tel. 903-640-4963
                                                                 Fax: 903-640-4964
                                                       State Bar Card No. 14025600
                                                              Attorney for Appellant


                              Certificate of Service

       This is to certify that a true and correct copy of the above and foregoing

 Appellant’s Brief on Appeal was hand-delivered to Richard E. Glaser, Fannin

 County Criminal District Attorney; 101 East Sam Rayburn Drive; Bonham, Texas

 75418; on February 12, 2015; and to the State Prosecuting Attorney, LISA C.

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McMINN, P.O. Box 13046, Capitol Station, Austin, Texas 78711, and that a copy

was mailed to the Appellant, Thomas Lloyd Taunton.




                                        _________________________________
                                                             Steven R. Miears




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