                                                                         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
                                                                                        CLERK
                        PD-1385-15 through PD-1388-15

                                TO THE
                      COURT OF CRIMINAL APPEALS
                               OF TEXAS
                            ________________

                       WILLIAM JAMES AKIN,
                                                 Appellant

                                       v.
November 10, 2015

                       THE STATE OF TEXAS,
                                                 Appellee
                              ________________

                            On Appeal in Cause Nos.
            CR-13-24791, CR-13-24795, CR-13-24796, and CR-13-24799
                          From the 336th 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
     __________________________________________________________________


             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
                                           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-admitted evidence when it analyzes harm. .............................................. 4

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

PRAYER ....................................................................................................................7

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

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




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                                        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

TEX. R. APP. P. 44.2(a) ...............................................................................................4

TEX. R. APP. P. 66.2 ...................................................................................................2

TEX. R. APP. P. 66.3 ...............................................................................................2, 3




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                        PD-1385-15 through PD-1388-15


                  TO THE COURT OF CRIMINAL APPEALS
                        OF THE STATE OF TEXAS

                               ________________


                        WILLIAM JAMES AKIN,
                                                  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 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.


                                      1
                   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.

                                  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.

   1. 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 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 its

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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 that the lower court’s opinion conflicts with

those of this Court and with other courts of appeals. See TEX. R. APP. P. 66.3.

However in reality, his complaint simply asks this Court to reconsider the appellate

court’s harm analysis 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 that 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 unchallenged

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

corroborated 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 the


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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 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 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 error, a reviewing court must not

reverse a judgment unless a substantial right of the defendant is affected. TEX. R.

APP. 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 evidence

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, 113


                                          4
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 some 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 conclusion 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 established 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 of


                                        5
implementing 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 should not

grant discretionary review simply to revisit a lower court’s routine application of

established precedent to an otherwise unremarkable set of facts.

                                  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 non-constitutional harm

analysis and substitute in its place a virtually identical replacement. Because his

complaint is not significant 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.




                                         6
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully

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

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

      Dated: November 10, 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 1,148

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




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                         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 10th

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.
Bonham, Texas 75418
ATTORNEY FOR APPELLANT

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




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