                                                                          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
                             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


July 9, 2015
                                           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




                                                           i
                                        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




                                                         ii
                            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.


                                       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. 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.


                                         2
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).

                                             3
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).

                                                4
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




                                        5
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.

                                          6
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




                                       7
                         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




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