Affirmed and Memorandum Opinion filed January 29, 2019.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00027-CR
                                NO. 14-18-00028-CR
                                NO. 14-18-00029-CR

                    EX PARTE MARK DOUGLAS ROBISON


                     On Appeal from the 351st District Court
                              Harris County, Texas
            Trial Court Cause Nos. 1324897-B, 1324898-B & 1324899-B

                            MEMORANDUM OPINION

         In this appeal from an order denying habeas corpus relief, we consider four
claims of ineffective assistance of counsel. For reasons explained more fully below,
we conclude that each claim is without merit. We therefore affirm the habeas court’s
order.

                                  BACKGROUND

         The Trial. Appellant was charged with three counts of possessing child
pornography. Appellant testified that he knowingly possessed the pornography, but
he claimed that his possession was for a bona fide educational purpose, which is an
affirmative defense to prosecution. More specifically, appellant explained that he
possessed the pornography because he was researching the scope of child sexual
abuse, which he aspired to end.

         The prosecutor disputed the sincerity of this defense by pointing out that
appellant never discussed his research until after he was indicted. For example,
appellant never notified law enforcement before conducting his research, even
though he knew that law enforcement frequently tracked the online distribution of
child pornography. Similarly, appellant never reached out to a university, a peer
review group, or an attorney before conducting his research. Also, he never even
alerted his wife about his research.

         The prosecutor drew attention to other omissions too. She established that
appellant saved thousands of pornographic images to his personal computer, but no
scholarly articles. She elicited testimony that appellant chose to remain silent during
the execution of a search warrant, rather than explain to his investigators that he
possessed child pornography for a bona fide educational purpose. She also elicited
testimony that appellant never mentioned his affirmative defense to her during
several pretrial hearings.

         The jury rejected appellant’s affirmative defense, convicted him on all three
counts, and recommended that he receive a probated sentence.

         The Direct Appeal. Appellant raised three issues in his direct appeal to this
court.

         In his first issue, appellant argued that the trial court had reversibly erred when
it refused to admit two of his self-published books into evidence. We assumed for



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the sake of argument that the trial court had erred, but we concluded that the error
was harmless under the standard for nonconstitutional error.

      In his second issue, appellant asserted multiple claims of ineffective assistance
of counsel. He first claimed that counsel was deficient by not moving to strike biased
members of the venire panel. We concluded that this claim failed because the record
did not conclusively establish that the challenged venirepersons were biased.
Appellant argued next that counsel was deficient because counsel did not object
when the prosecutor elicited testimony about appellant’s pre-arrest silence, and
because counsel himself also elicited testimony about the same pre-arrest silence.
We concluded that these claims failed because the testimony was admissible and
because a reasonable strategy could be imagined for counsel’s actions. Finally,
appellant argued that counsel was deficient by failing to object to the prosecutor’s
criticism of appellant’s post-arrest silence during the pretrial hearings. Even though
the record was silent as to counsel’s strategy, we concluded that counsel was
deficient because no reasonable explanation could be imagined for the failure to
object. However, we held that counsel’s deficiency did not result in any prejudice.

      In his third issue, appellant argued that the prosecutor had engaged in several
forms of misconduct by making improper comments about appellant’s pre-arrest and
post-arrest silence. We held that this issue was not preserved because counsel never
objected to any instance of alleged misconduct.

      Having overruled all of appellant’s issues, we affirmed the trial court’s
judgment. See Robison v. State, 461 S.W.3d 194, 207 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d).

      The Petition for Discretionary Review. Appellant then petitioned for
discretionary review before the Texas Court of Criminal Appeals. He asserted two
grounds in his petition. First, he argued that the court of appeals had erred by
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reviewing his evidentiary challenge under the standard for nonconstitutional error,
instead of constitutional error. Second, he argued that the court of appeals had erred
by holding that a claim of prosecutorial misconduct required a timely objection.

         Appellant did not raise a complaint about the ineffective assistance of counsel,
and the Court of Criminal Appeals refused his petition without comment.

         The Habeas Proceedings. Appellant then filed an application for writ of
habeas corpus, in which he asserted four claims of ineffective assistance of counsel.

         The first two claims had also been raised as issues in the direct appeal. In these
claims, appellant asserted that counsel was deficient for failing to object when the
prosecutor referred to appellant’s pre-arrest and post-arrest silence.

         The third claim was a variation on an issue that had been raised in the direct
appeal. Appellant asserted in this claim that counsel was deficient because counsel
did not present an argument to the trial court that would make the exclusion of the
self-published books reviewable under the more rigorous standard for constitutional
error.

         The fourth claim was entirely novel. Appellant asserted that counsel was
deficient by failing to present expert testimony from two psychologists during the
guilt phase of the trial.

         Counsel filed an affidavit, addressing his strategy as to each of these claims.
The habeas court credited counsel’s explanations and denied relief without the
benefit of a live hearing. The habeas court also entered written findings of fact and
conclusions of law.

         Appellant now appeals from the order denying habeas corpus relief.




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                                    ANALYSIS

      Standard of Review. To prevail on a claim of ineffectiveness, appellant had
the burden of proving by a preponderance of the evidence that (1) his trial counsel’s
performance was deficient, in that it fell below an objective standard of
reasonableness; and (2) but for counsel’s deficient performance, the outcome would
have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The
habeas court ruled that appellant did not satisfy this burden with respect to any of
his claims. To the extent that the habeas court’s ruling was based on an evaluation
of credibility and demeanor, we review that ruling for an abuse of discretion,
affording almost total deference to the court’s findings when they are supported by
the record. See Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). To the
extent that the ruling was based on a pure question of law, or upon a mixed question
of law and fact not depending on an evaluation of credibility and demeanor, our
review is de novo. See Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App.
2015).

      Re-litigated Claims. The habeas court noted in its findings of fact that
appellant’s first two claims had already been raised and rejected on direct appeal.
The habeas court further determined that relief should be denied as to these claims
because “issues raised and rejected on direct appeal may not be reconsidered on a
post-conviction writ.” See Ex parte Schuessler, 846 S.W.2d 850, 852 n.6 (Tex. Crim.
App. 1993) (“Habeas corpus is traditionally unavailable to review matters which
were raised and rejected on appeal.”).

      Appellant invokes an exception to the habeas court’s rule, arguing that a claim
may be re-litigated “where direct appeal cannot be expected to provide an adequate
record to evaluate the claim in question, and the claim might be substantiated
through additional evidence gathering in a habeas corpus proceeding.” See Ex parte

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Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Appellant believes this
exception applies because “the structure and design of the Texas system . . . make it
‘virtually impossible’ for an ineffective assistance claim to be presented on direct
review.” See Trevino v. Thaler, 569 U.S. 413, 417 (2013).

      For the sake of argument, we will assume without deciding that appellant was
allowed to re-litigate his claims, because the outcome is the same in either event. We
therefore proceed to the merits.

      Pre-arrest Silence. When appellant testified during the guilt phase of his trial,
the prosecutor elicited testimony that appellant had been less than forthcoming when
he met with investigators during the execution of a search warrant, which occurred
before his arrest. The testimony established that appellant never mentioned his
alleged research to the investigators when they were executing the search warrant;
that appellant terminated a voluntary interview with the investigators and asked to
speak to an attorney; and that appellant never disclosed to the investigators which of
his personal computers possessed the child pornography. The prosecutor elicited
similar testimony from the investigators, who testified that, after a certain point in
his interview, appellant “didn’t want to talk anymore” and “he stated he no longer
wished to cooperate.” The prosecutor emphasized all of this evidence in her closing
arguments.

      In the direct appeal, we were asked to consider whether counsel was deficient
because counsel never objected to any of these references to appellant’s pre-arrest
silence. We held that counsel was not deficient because “evidence of the defendant’s
pre-arrest and pre-Miranda silence . . . may be admitted for purposes of
impeachment without violating the defendant’s Fifth Amendment right against self-
incrimination.” See Robison, 461 S.W.3d at 205. And in support of that holding, we
cited to two cases from the Texas Court of Criminal Appeals: Salinas v. State, 369

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S.W.3d 176 (Tex. Crim. App. 2012), aff’d, 570 U.S. 178 (2013) (plurality op.), and
Turner v. State, 719 S.W.2d 190 (Tex. Crim. App. 1986).

      Appellant did not challenge our analysis in a motion for rehearing or in his
petition for discretionary review. But in his application for writ of habeas corpus, he
disputed our reliance on Salinas, for apparently two reasons. First, appellant noted
that, in his case, the evidence of pre-arrest silence was admitted for impeachment
purposes, whereas in Salinas, the evidence of pre-arrest silence was admitted for
substantive purposes because the defendant there did not testify. Second, appellant
noted that when Salinas was considered by the United States Supreme Court, a
majority of the justices there could not reach a consensus as to whether the Fifth
Amendment was applicable to the use of a non-testifying defendant’s pre-arrest
silence.

      These arguments fail for at least three reasons.

      First, when we cited to Salinas, we were referring to the majority opinion from
the Texas Court of Criminal Appeals, which is binding on us—not on the plurality
opinion from the United States Supreme Court, which is not binding on us. See CTS
Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81 (1987) (“As the plurality opinion
in MITE did not represent the views of a majority of the Court, we are not bound by
its reasoning.”); Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013)
(“Plurality opinions do not constitute binding authority.”).

      Second, the majority opinion from the Texas Court of Criminal Appeals
clearly holds that evidence of pre-arrest silence is admissible “regardless of whether
a defendant testifies.” See Salinas, 369 S.W.3d at 179 (“We hold that pre-arrest, pre-
Miranda silence is not protected by the Fifth Amendment right against compelled
self-incrimination, and that prosecutors may comment on such silence regardless of
whether a defendant testifies.”).
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      And third, appellant totally failed to address our citation to Turner, which
involved evidence of pre-arrest silence for impeachment purposes, exactly like
appellant’s case. See Turner, 719 S.W.2d at 193 (“The attorney for the State was
correct in his impeachment of the appellant through appellant’s pre-arrest statements
which failed to mention his alibi. The fact that the appellant failed to inform the
police of his alibi on March 28 and April 7, 1983, when he had an opportunity to do
so, and in circumstances in which he would be expected to speak out, was admissible
to impeach the appellant at trial.”).

      In one final point, appellant asserts that “this Court should order factual
development on the issue to determine counsel’s thinking.” But counsel has already
explained his thinking. Counsel testified in his affidavit that he did not object to the
prosecutor’s comments about appellant’s pre-arrest silence because he believed that
such evidence was admissible for purposes of impeachment. Counsel was correct on
that point, for the reasons we have stated here and in appellant’s direct appeal. The
habeas court was also correct in noting that “counsel cannot be found ineffective for
failing to object to admissible evidence.” See Ex parte Jimenez, 364 S.W.3d 866,
887 (Tex. Crim. App. 2012) (“The failure to object to proper questions and
admissible testimony . . . is not ineffective assistance.”).

      Post-arrest Silence. The prosecutor also remarked on appellant’s post-arrest
silence. More specifically, she elicited testimony that appellant had appeared for
eleven pretrial hearings, and on each of those occasions, he never once approached
her to explain that he had been researching child pornography for a bona fide
educational purpose.

      On direct appeal, we held that counsel was deficient by failing to object to this
line of questioning. As we explained:



                                            8
      Appellant may have had an opportunity to approach the prosecutor and
      discuss the merits of his defense, but he was under no legal obligation
      to do so. See Franklin v. State, 606 S.W.2d 818, 848 (Tex. Crim. App.
      1978) (op. on reh’g) (“Merely having the opportunity to say something
      does not constitute circumstances in which one would be expected to
      speak out.”). The pretrial hearings were conducted for the limited
      purpose of resetting the case for a later date, and appellant was
      represented by counsel during each of the hearings. Appellant was
      entitled to rely on counsel’s representation and avoid direct contact with
      the prosecutor, who acted as his legal adversary. The prosecutor’s line
      of questioning was neither relevant nor appropriate, and we can think
      of no reason why counsel would not object to the improper criticisms
      of appellant’s in-court silence.
Robison, 461 S.W.3d at 206.

      But we further explained that counsel’s deficiency did not result in any
prejudice:

      The jury heard testimony that appellant was silent during the execution
      of the search warrant and that he had not mentioned to his wife that he
      had been researching child pornography. That evidence of pre-arrest
      silence, which was admissible for impeachment purposes, had already
      cast serious doubt on appellant’s credibility. There is no reasonable
      likelihood that the jury would have disregarded appellant’s pre-arrest
      silence but not his in-court silence.

Id.

      In response to appellant’s habeas application, counsel offered the following
explanation for his failure to object:

      I did not object to the prosecutor’s comments on Mr. Robison’s post-
      arrest silence because the defense has no duty to inform the State of its
      available defenses. I did not want to alert the State during pre-trial
      settings of the bona fide educational affirmative defense (which, while
      certainly codified as an affirmative and available defense, is rarely
      applied).



                                          9
      Appellant correctly observes that this explanation misses the mark. The claim
of ineffectiveness arises out of counsel’s omissions during the trial on the merits
(when appellant’s defensive theory was already known to the prosecutor), not during
the pre-trial settings (when the defensive theory may not have been known).

      In any event, appellant could not prevail on this claim of ineffectiveness
without establishing that the outcome of the trial would have been different but for
counsel’s failure to object. And as to that point, appellant did not develop any new
facts in the habeas record that would alter our conclusion that he suffered no
prejudice. Considering the abundance of admissible evidence that appellant had
neglected to mention his research to anyone before his arrest, there is no reasonable
likelihood that appellant’s post-arrest silence moved the jury from a state of non-
persuasion to a state of persuasion.

      In the absence of any new factual points, appellant challenges our prejudice
analysis with two new legal points.

      First, appellant argues that we were “wrong” on direct appeal because the
failure to object to post-arrest silence is itself prejudicial, citing Hall v. State, 161
S.W.3d 142 (Tex. App.—Texarkana 2005, pet. ref’d). But Hall is distinguishable
because it involved evidence of post-arrest silence only (not pre-arrest silence too),
and the defense attorney in that case was found to be deficient in more ways than
just his failure to object to the post-arrest silence. Id. at 152–55. Also, the court of
appeals in Hall conducted a full analysis of prejudice. Id. at 155–56. The court of
appeals did not summarily conclude that the defendant was entitled to relief due to
counsel’s failure to object, as appellant would seemingly have us do.

      Second, appellant argues that the prejudice from the post-arrest silence is
cumulative of the prejudice from the pre-arrest silence, and that we cannot point to
one error to excuse the other. This argument is fatally flawed because it depends on
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the faulty premise that counsel was deficient by not objecting to the evidence of pre-
arrest silence. As we explained in the direct appeal and again in this opinion, counsel
was not deficient in that regard because the evidence of pre-arrest silence was
admissible.

      Self-published Books. Counsel offered into evidence two books that appellant
authored and self-published. The first book was a collection of poems that appellant
wrote nearly twenty years before child pornography was discovered on his personal
computer. None of the poems expressly broached the subject of child pornography,
but some addressed themes such as “right and wrong” and “nastiness” in the world.

      The second book was an educational book that appellant wrote after he was
indicted. This book was organized into three parts. The first part addressed
appellant’s personal relationship with child sexual abuse. The second part addressed
the societal problems associated with child sexual abuse, including the harm to the
child and the proliferation of child pornography. The third part included proposals
for tackling such problems.

      The prosecutor objected to both books on grounds of relevancy and hearsay.
Counsel responded that he was not offering the books for the truth of the matter
asserted. Counsel also explained that the book of poetry was relevant because it
showed that appellant was trying “to get the word out.” As for the educational book,
counsel explained:

      It’s directly relevant as to our affirmative defense as to educational use.
      [Appellant] has published a document relating to this. The jury can
      weigh the credibility as to whether it’s bona fide or not. But he
      specifically talks about child pornography, specifically talks about
      child sexual abuse, references acts that are—most people would
      classify as that. So, it’s part and parcel of our defense.



                                          11
      On direct appeal, we assumed without deciding that the trial court had erred
by excluding the books. But we held that the errors were harmless under the standard
for nonconstitutional error because the books were cumulative of other evidence.
We explained that appellant had testified at length about the contents of his books.
We also noted that appellant had produced evidence that he co-hosted a radio
program and created a website, both of which were aimed at spreading awareness of
child sexual abuse. “Thus,” we held, “the jury was still able to consider whether
appellant possessed the child pornography for a bona fide educational purpose.” See
Robison, 461 S.W.3d at 201–02.

      In his habeas application, appellant asserted that counsel was deficient
because counsel did not specifically argue that the exclusion of appellant’s books
amounted to a constitutional violation. Appellant asserted that if counsel had made
that argument—for example, by objecting that the exclusion deprived him of his
constitutional right to present a defense—then the exclusion of his books would have
been reviewable under the standard for constitutional error, instead of
nonconstitutional error.

      Counsel did not directly respond to appellant’s claim in his affidavit. Instead
of addressing the distinction between the two standards for reversible error in
criminal cases, counsel merely explained his actions as follows: “I believe I properly
invoked Rule 401 of the Texas Rules of Evidence and sufficiently stated my reasons
for offering the books into evidence, thereby preserving the complaint for appellate
review.”

      The habeas court found that counsel’s actions were appropriate, and we agree
for the reasons stated in our opinion on direct appeal.

      Also, we conclude that appellant’s new arguments in this appeal are meritless.
Contrary to appellant’s suggestions, we would not have reviewed his evidentiary
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complaints under the more rigorous standard for constitutional error if counsel had
worded his objection differently. “The exclusion of a defendant’s evidence will be
constitutional error only if the evidence forms such a vital portion of the case that
exclusion effectively precludes the defendant from presenting a defense.” Potier v.
State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). As we explained in the direct
appeal, appellant was not deprived of the right to present a defense because “the jury
was still able to consider whether appellant possessed the child pornography for a
bona fide educational purpose.” See Robison, 461 S.W.3d at 201–02; see also
Vasquez v. State, 501 S.W.3d 691, 700 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d) (rejecting a similar argument that the exclusion of evidence was reviewable
under the standard for constitutional error).

      Expert Testimony. Counsel called two psychologists during the punishment
phase of appellant’s trial. The primary purpose of the psychologists’ testimony was
to establish that appellant was not at risk for harming children, and that he would be
a good candidate for a sex-offender treatment program while on community
supervision.

      The psychologists addressed other matters too. They said that appellant
admitted to knowingly possessing child pornography, and they indicated that it was
possible for a person to possess such pornography without being physically or
sexually aroused.

      Appellant asserted in his habeas application that counsel was deficient by not
calling the same two psychologists during the guilt phase of trial. According to
appellant, the psychologists’ testimony that a person could possess child
pornography without being aroused by it would have supported a finding that he
possessed his pornography for a bona fide educational purpose.



                                          13
      Counsel filed a response affidavit, which gave the following explanation for
his actions:

      My trial strategy involving the two expert witnesses was very
      straightforward. [The psychologists] were called for the sole and
      express separate and respective purposes of providing a sex offender
      diagnostic assessment and then therapist’s treatment. They were not
      consulted on providing expert testimony on Mr. Robison’s claims of a
      bona fide educational purpose for viewing child pornography. [The
      psychologists] were integral to the overall defense of blunting the
      State’s attack that Mr. Robison presented a clear and present danger
      within the community, and to show that there was absolutely no clinical
      support whatsoever for the State’s comments that Mr. Robison was
      actually assaulting or could potentially assault children. Was Mr.
      Robison gathering computer-based images admittedly containing child
      pornography? Yes. Were those images then fueling later actions of
      assault against children? No. During guilt-innocence, the experts’
      testimony would have had to specifically addresses these issues, which
      [were] outside the scope of their engagement: (1) for a bona fide
      educational use of child pornography, were they aware that Mr.
      Robison had never approached law enforcement before he decided to
      investigate child pornography?; (2) for a bona fide educational use of
      child pornography, were they aware that Mr. Robison had made no
      attempt to contact any university, peer review group, or any attorney
      for guidance before or during his “research” into child pornography;
      (3) for a bona fide educational use of child pornography, were they
      aware that Mr. Robison had failed to even alert his wife about his desire
      to research the issue of child pornography (as evidenced by his wife’s
      comments that she was unaware that he had been downloading child
      pornography); and (4) for a bona fide educational use of child
      pornography, were they aware that despite saving literally thousands of
      child pornographic images to his computer, he had written no scholarly
      peer reviewed articles on this subject?

      The habeas court expressly found that counsel’s trial strategy was reasonable.

      Now on appeal, appellant challenges counsel’s explanation by arguing that
counsel was deficient by not enlarging the scope of the psychologists’ engagement
to include these other areas of discussion. This argument fails for two reasons.
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      First, the habeas court found that both psychologists had formed a preliminary
diagnosis of appellant as “a possible pedophile.” The habeas court also found that if
the psychologists had been called to testify during the guilt phase of trial, this
diagnosis would have been revealed to the jury. Counsel could have reasonably
determined that the jury should not know this diagnosis when it was deciding
appellant’s guilt.

      Second, the habeas court found that appellant “gave lengthy testimony during
guilt-innocence as to his reasons for possessing child pornography, and the jury was
free to disbelieve those reasons.” Because the psychologists’ testimony would have
been cumulative at best, the habeas court found that appellant had not shown a
reasonable likelihood of a different outcome. Appellant offers no challenge to this
finding, which is supported by the record. Deferring to this finding as we must, we
conclude that appellant failed to prove his claim of ineffective assistance of counsel.

                                  CONCLUSION

      The habeas court’s order is affirmed.




                                        /s/    Tracy Christopher
                                               Justice


Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).




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