                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00202-CR


PAUL SAMPSON JR.                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1372715D

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                           MEMORANDUM OPINION1

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      Appellant Paul Sampson Jr. appeals from his conviction for sexual assault,

a second-degree felony.2 In three points, he contends that the trial court’s jury

charge on punishment violated his rights of due process and due course of law,

that the statute authorizing a “DNA testing” fee charged to him as a court cost is

      1
          See Tex. R. App. P. 47.4.
      2
          See Tex. Penal Code Ann. § 22.011(a)(1)(A), (f) (West 2011).
unconstitutional, and that the trial court abused its discretion by admitting several

exhibits over his objection. We affirm.

                                Background Facts

      According to evidence presented at trial, in August 2013, appellant

sexually assaulted L.B. (Lisa).3 Appellant and Lisa had known each other for

several years. During questioning by the State, Lisa testified to communicating

with appellant and several others by using her cell phone and Facebook account

before and after the sexual assault. In reference to these communications, the

State offered twenty photographic exhibits, nineteen of which displayed

information on the screen of Lisa’s cell phone and one of which displayed her

Facebook page.      The photographs showed various call logs from Lisa to

appellant, call logs from Lisa to several of her friends, several text messages

between Lisa and appellant, and a Facebook conversation between Lisa and

appellant. The trial court admitted these exhibits over appellant’s objection.

       After the parties completed their presentations of evidence and arguments

on the issue of appellant’s guilt, a jury convicted him. At the end of the trial’s

punishment phase, over appellant’s objection, the trial court gave the jury a

charge that contained statutorily required language concerning the possibility of

good-conduct time credit during incarceration even though such credit is not


      3
       To protect L.B.’s anonymity, we will refer to her through a pseudonym.
See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).


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available for a defendant convicted of sexual assault.4         The jury assessed

appellant’s punishment at ten years’ confinement but recommended that the

sentence be suspended and that appellant be placed on community supervision.

      In accordance with the jury’s verdict, the trial court placed appellant on

community supervision. In its judgment, the trial court assessed costs of $559,

including $250 for “DNA Testing,” as mandated by statute.5 Appellant appealed.

                                    Jury Charge

      In his first point, appellant argues that the trial court erred by including the

portion of the jury charge on punishment regarding the possibility of obtaining

good-conduct time credit during incarceration. In our review of a jury charge, we

first determine whether error occurred; if error did not occur, our analysis ends.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

      Appellant acknowledges that the instruction concerning the possibility of

obtaining good-conduct time complied with article 37.07, section 4(a) of the code

of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). He

argues, however, that the instruction was erroneous and unconstitutional as

applied to him because good-conduct time credit cannot be accumulated by

someone who is convicted of sexual assault.           See Tex. Gov’t Code Ann.

§ 508.145(d) (making a person serving a sentence for sexual assault ineligible

      4
      See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2016);
Tex. Gov’t Code Ann. § 508.145(d)(1) (West Supp. 2016).
      5
          See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (West Supp. 2016).


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for release based on the consideration of good-conduct time credit).          But

appellant acknowledges that the court of criminal appeals has addressed this

issue and found no violation of due process.6 See Luquis v. State, 72 S.W.3d

355, 357, 363–68 (Tex. Crim. App. 2002).

      We are bound by the precedent of the court of criminal appeals.

Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort Worth 2014, no pet.).

Accordingly, following Luquis, we hold that the trial court did not err by issuing

the jury charge in compliance with article 37.07, section 4(a) of the code of

criminal procedure. See 72 S.W.3d at 357, 363, 368; Thomas v. State, No. 02-

09-00341-CR, 2010 WL 3377792, at *1 (Tex. App.—Fort Worth 2010, pet. ref’d)

(mem. op., not designated for publication) (following Luquis); Jennings v. State,

No. 02-08-00145-CR, 2009 WL 1564961, at *7 (Tex. App.—Fort Worth June 4,

2009, pet. ref’d) (mem. op., not designated for publication) (same); Sanders v.

State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008, pet. ref’d) (same);

see also Sanders v. State, 448 S.W.3d 546, 549 (Tex. App.—San Antonio 2014,

no pet.) (collecting more cases and declaring the matter “well-settled”).     We

overrule appellant’s first point.

                                    DNA Testing Cost

      In his second point, appellant contends that the collection of $250 for a

DNA testing cost, as mandated by article 102.020(a)(1) of the code of criminal

      6
        Appellant states that he brings his complaint “to preserve the issue for
further review.”


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procedure, is facially unconstitutional because it is not necessary or incidental to

the trial of a criminal case. See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1)

(requiring a person convicted of certain offenses to pay $250 as a court cost).

Appellant recognizes, however, that the court of criminal appeals recently

rejected   the   “necessary    and    incidental”   standard   as   governing    the

constitutionality of court costs.7 See Peraza v. State, 467 S.W.3d 508, 517, 521

(Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016).

       In Peraza, the court rejected the very argument appellant makes in his

second point, which is that article 102.020 is facially unconstitutional. Id. at 510,

521 (“Because Peraza has not demonstrated that every application of the statute

assigning DNA Record Fee revenue to the state highway fund would be

unconstitutional, he has not met his burden to show that the portion of the DNA

Record Fee that benefits the state highway fund is facially unconstitutional.”).

The court rejected its prior opinion in Ex parte Carson—the case upon which

appellant principally relies in his second point—as governing the constitutionality

of court costs. 143 Tex. Crim. 498, 506, 159 S.W.2d 126, 130 (1942) (op. on

reh’g), overruled by Peraza, 467 S.W.3d at 517.

      Appellant contends that Peraza was wrongly decided for several reasons,

but we do not have the discretion to reject the holdings of the Texas Court of

Criminal Appeals. See Crenshaw, 424 S.W.3d at 755. Because the holding in

      7
        Appellant again states that he brings his complaint “to preserve the matter
for further review.”


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Peraza explicitly forecloses appellant’s facial challenge to the constitutionality of

article 102.020 and rejects Carson’s “necessary and incidental” standard upon

which he bases his argument, we overrule his second point. See Peraza, 467

S.W.3d at 510, 517, 521.

                             Admission of Evidence

      In his third point, appellant argues that the trial court abused its discretion

by admitting photographs of Lisa’s cell phone and Facebook page. Some of

these photographs display text messages from appellant stating “Food is here,” “I

really enjoyed ur company last night,” and “I’m at the cinema.” One photograph

displays a Facebook conversation between Lisa and appellant in which he wrote,

“i hear u” and in which she wrote, among other things, “Hi Paul, go to sleep[.]”

The other photographs all display logs of Lisa’s received and missed calls.

Appellant contends that these photographs were not relevant because they did

not have any tendency to make a fact of consequence more or less probable and

therefore should not have been admitted. See Tex. R. Evid. 401.

      Assuming, without deciding, that the trial court erred by admitting the

photographs, we conclude that the error was not harmful under the standard for

nonconstitutional error. A nonconstitutional error that does not “affect substantial

rights must be disregarded.” Tex. R. App. P. 44.2(b); see James v. State, 335

S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.) (“Generally, the

erroneous admission or exclusion of evidence is nonconstitutional error governed




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by rule 44.2(b) if the trial court’s ruling merely offends the rules of evidence.”).8 A

substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have “fair assurance that the error did not influence the jury, or had but

a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      The improper admission of evidence is harmless if the same or similar

evidence is admitted without objection at another point in the trial. Estrada v.

State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 562 U.S.

1142 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An

error in the admission of evidence is cured where the same evidence comes in

elsewhere without objection.”); Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.

App. 1998); Hill v. State, 303 S.W.3d 863, 876 (Tex. App.—Fort Worth 2009, pet.

ref’d). Here, before the trial court admitted the complained-of photographs, Lisa

testified, without objection, that she had received and missed calls from

appellant, that she had sent him an online message stating “Paul, go to bed,” and

that they had exchanged text messages. Specifically, Lisa testified that appellant

had sent her a text message stating that he was in a movie theater and another

      8
      In his brief, appellant concedes that rule 44.2(b)’s harm standard for
nonconstitutional error applies to this point.


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text message stating that her food was ready after she had agreed to eat dinner

with him. Later in Lisa’s testimony, the State offered the photographs at issue

(except the Facebook photograph), appellant objected, and the trial court

overruled the objection and admitted the photographs.         Without any further

objection, Lisa testified about the contents of the photographs, including the

Facebook photograph and the text message that he had enjoyed her company,

and she also testified about various calls made to and from her cell phone. The

State then offered the Facebook photograph, and the trial court admitted it over

appellant’s objection. After the Facebook photograph’s admission, Lisa again

testified about its contents without objection.

         Under these circumstances, because unobjected-to evidence proves the

same facts as the objected-to photographs, we conclude that any error in

admitting the photographs was harmless. See Tex. R. App. P. 44.2(b); Estrada,

313 S.W.3d at 302 n.29; Hailey v. State, 413 S.W.3d 457, 469 (Tex. App.—Fort

Worth 2012, pet. ref’d); Elder v. State, 132 S.W.3d 20, 27 (Tex. App.—Fort Worth

2004, pet. ref’d), cert. denied, 544 U.S. 925 (2005). We overrule appellant’s third

point.




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                                Conclusion

      Having overruled appellant’s three points, we affirm the trial court’s

judgment.


                                              /s/ Terrie Livingston

                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2016




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