                                                                            ACCEPTED
                                                                        06-14-00178-CR
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                  9/21/2015 12:04:50 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK



Nos. 06-14-00178-CR; 06-14-00179-CR; 06-14-00180-CR; 06-14-00181-
                             CR                      FILED IN
                                                6th COURT OF APPEALS
                                                  TEXARKANA, TEXAS
                                                9/21/2015 12:04:50 PM
              IN THE COURT OF APPEALS                DEBBIE AUTREY
                                                         Clerk
 FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA

                    WILLIAM JAMES AKIN
                       Appellant

                               v.

                    THE STATE OF TEXAS
                        Appellee



  ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF
              FANNIN COUNTY, TEXAS
    THE HON. LAURINE BLAKE, JUDGE PRESIDING
          TRIAL COURT CAUSE NUMBERS:
                   CR-13-24791; CR-13-24795;
                    CR-13-24796; CR-13 24979


          APPELLANT’S MOTION FOR REHEARING

                    STEVEN R. MIEARS
                    State Bar No. 14025600
                         211 North Main
                     Bonham, Texas 75418
                        Tel: 903-640-4963
                       Fax: 903-640-4964
                  Email: SteveMiears@msn.com
                              MOTION FOR REHEARING

      TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
      Comes now William James Akin, appellant in the above entitled and

numbered cases, and submits this motion for rehearing under Rule 49.1 of the

Texas Rules of Appellate Procedure, and requests that the court reconsider its

opinion of September 16, 2015.

      POINT OF ERROR ONE:

      The Court of Appeals errs in finding that the admission of several

disturbing pornographic photographs was harmless error by incorrectly applying

the proper standard of review. For quick reference the photos are reproduced

below, and in the format in which the jury considered them.

                                       ARGUMENT

      Modern trial advocacy teaches lawyers to use photographs to embed a point

within the juror’s mind – indelibly so they recall it during their deliberations. They

are taught that the brain retains information differently according to the nature of

the information it is exposed to – especially a narrative coupled with graphic

exhibits. The expression "Use a picture. It's worth a thousand words" is the

pedagogical mantra for how to triumph at trial. Studies of the brain, and research

on learning, have shown that people learn best when all their senses are engaged.
The brain is most active when stimulated in various ways. In practical terms, this

means that jurors will absorb more information, and be more receptive to the

advocate’s theme when the case is presented in a multimedia format. Joining the

narrative with graphics enhances the impact. See Janet L. Hoffman, Litigation

Journal SPRING 2011 • Vol. 30 No. 1.

        The Court aptly points out that a reviewing court must analyze “the

character of the alleged error and how it might be considered in connection with

other evidence in the case.” Akin v. State, No. 06-14-00178-CR, p. 14.                                        In

weighing the effect of this raw smut on the minds of these jurors, the Court’s

opinion fails to properly judge the power of the photos to destabilize the integrity

of the trial process. The coupling of these images of interracial gang sodomy with

the testimony that, “Akin was watching aggressive and vulgar pornography,

including wife-raping video recordings, forced sex, and simulated rape . . .”

caused their impact to be hardened. Instead, the Court’s opinion erroneously

minimizes the impact of the photos precisely because it was joined with narrative

testimony. 1 Akin v. State, No. 06-14-00178-CR, p. 14.


1
  The Court’s opinion points out that the question of the admission of this testimony was not raised on appeal.
The Court’s opinion, therefore, implicitly acknowledges this too was irrelevant testimony, and error. The Court’s
opinion suggests that had only this error been complained about on appeal then the case for the harm from the
pictures would be evident. However, the record is replete with this testimony being introduced without a
continuous running objection – sometimes admitted even by the Appellant himself. The error, therefore, would
no-doubt have been determined to have been waived. Nevertheless, harm should be analyzed from the state of
the entire record as the evidence was presented to the jury – not from what it could have been from a perfect
trial or appeal. “In assessing the likelihood that the jury's decision was adversely affected by the error, an
                                                                                rd
appellate court considers everything in the record.” Schumtz v. State, 440 S.W.3 29,39 (Tex. Crim App. 2014).
      The Kotteakos standard established by the U.S. Supreme Court is the same

one for review as the Texas standard for non-constitutional error on direct appeal.

Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).         In

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557

(1946) the U.S. Supreme Court explained: “If one cannot say, with fair assurance,

after pondering all that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the error, it is

impossible to conclude that substantial rights were not affected. The inquiry

cannot be merely whether there was enough to support the result, apart from the

phase affected by the error. It is rather, even so, whether the error itself had

substantial influence. If so, or if one is left in grave doubt, the conviction cannot

stand.” Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248; see also Motilla v. State, 78

S.W.3d 352, 355-58 (Tex. Crim. App. 2002) and Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001).

      “Grave doubts" means "in the judge's mind, the matter is so evenly

balanced that he feels himself in virtual equipoise as to the harmlessness of the

error." Webb v. State, 36 S.W.3d 164, 182-83 (Tex. App.--Houston [14th Dist.]

2000, pet. ref'd) (op. on reh'g) (citing O'Neal v. McAninch, 513 U.S. 432, 435, 115

S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995)). If the reviewing court is unsure

whether the error affected the outcome, the court should treat the error as harmful,
and as having a substantial and injurious effect or influence in determining the

jury's verdict. Id.

       As explained in Russell v. State, 113 S.W.3d 530, 549-550 (Tex. App. Fort

Worth 2003), the defendant need not prove harm from an error. There ordinarily is

no way to prove "actual" harm. It is instead the duty of the reviewing court to

assess harm from the context of the error. The proper inquiry is whether the trial

court's error in allowing the State to introduce these photographs substantially

swayed or influenced the jury's verdict, or whether we are left in grave

doubt whether this     evidence swayed or influenced the jury's verdict. If the

answer to either inquiry is “yes” --     then the error was not harmless. See

Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248; Johnson, 43 S.W.3d at 4.

       The Court’s opinion correctly finds these exhibits were irrelevant to any

issue. The State erred in offering them. The trial court erred in admitting them.

The jury should never have been sent the clear message that they were important

in determining his guilt or innocence. Nor should their potential for impacting the

assessment of his punishment be overlooked. In making its determination the error

was harmless, this Court errs in failing to consider the potential ability of these

photographs “to impress the jury in some irrational, yet indelible, way.”

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). See Motilla,

78 S.W.3d at 355-56.
      As stated in Harris v. State: “[A] reviewing court in applying the harmless

error rule should not focus upon the propriety of the outcome of the trial. Instead,

an appellate court should be concerned with the integrity of the process leading to

the conviction. . . . If the error was of a magnitude that it disrupted the [jurors']

orderly evaluation of the evidence, no matter how overwhelming it might have

been, then the conviction is tainted. Again, it is the effect of the error and not the

other evidence that must dictate the reviewing court's judgment.” 790 S.W.2d 568,

587-88 (Tex. Crim. App. 1989). Russell v. State, 113 S.W.3d 530, 549-550 (Tex.

App. Fort Worth 2003).

      This case is close to the facts in Thrift v. State, 134 S.W.3d 475 (Tex. App.

Waco 2004). In Thrift, the Court appropriately concluded that “we do not know

that it was the credibility-weighing of the witnesses that led to the verdict, rather

than that the photographs ‘tipped the scales’ in a close case.” The result here

should be the same. This was a case of “he said – she said”. No eyewitnesses. No

forensic evidence. No confession. Horrific images.

      In considering the sway of these photos it matters little that the State’s

references to the pictures comprised “only two paragraphs out of twelve and one-

half pages of the State’s closing argument in the transcript.” Akin p. 15. While a

picture may be worth a thousand words, in this case they are worth a tome.
                                PRAYER FOR RELIEF

      For the reasons herein alleged, appellant prays the court grant this

motion for rehearing, set aside the opinion of July 24, 2015, reverse the judgment

and sentence, and order a new trial.


                                                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 Motion for Rehearing was delivered by electronic e-mail service to

Richard E. Glaser, Fannin County Criminal District Attorney; 101 East Sam

Rayburn Drive; Bonham, Texas 75418; on September 21, 2015; and, that a copy

was mailed to the Appellant, William Akin, TDC# 01955082, at 11950 FM 998;

Dalhart, TX 79022
________________________
          Steven R. Miears.
