                                                                                     ACCEPTED
                                                                                 06-14-00178-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                            7/20/2015 1:45:01 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                                                  ORAL ARGUMENT NOT REQUESTED


                                                            FILED IN
                                                     6th COURT OF APPEALS
             No. 06-14-00178-CR through 06-14-00181-CR TEXARKANA, TEXAS
                                                     7/20/2015 1:45:01 PM
               IN THE SIXTH COURT OF APPEALS             DEBBIE AUTREY
                        TEXARKANA, TEXAS                     Clerk
                         ________________

                  WILLIAM JAMES AKIN,
                                            Appellant

                                  v.

                  THE STATE OF TEXAS,
                                            Appellee
                         ________________

                      On Appeal in Cause Nos.
       CR-13-24791, CR-13-24795, CR-13-24796 and CR-13-24979
                From the 336THJudicial District Court
                      of Fannin County, Texas

__________________________________________________________________


                     STATE’S BRIEF
__________________________________________________________________


                          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
                  IDENTITY OF PARTIES AND COUNSEL

      The State certifies that the following is a complete list of the parties,

attorneys, and other persons with interest in the outcome of this case:

(1)   John B. Setterberg, Assistant Criminal District Attorney, Fannin County,

      101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;

      ATTORNEY FOR THE STATE OF TEXAS.

(2)   Steve Miears, 211 N. Main St., Bonham, Texas 75418; APPELLATE

      ATTORNEY FOR APPELLANT.

(3)   Donald K. Hoover, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas

      75418, TRIAL ATTORNEY FOR APPELLANT;

(4)   William James Akin, TDCJ # 01955082, Dalhart Unit, 11950 FM 998,

      Dalhart, Texas 79022; APPELLANT.




                                          i
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT .............................................................................................................4

   Appellant’s choice of pornography was relevant to show which acts would
   arouse or gratify his sexual desire and to refute a defensive theory of
   fabrication. ............................................................................................................. 5

   Evidence of the defendant’s choice of pornography was limited to prevent
   substantially unfair prejudice. ................................................................................ 9

   Appellant’s second point of error presents nothing for review. The trial
   court acted within its discretion and Appellant was not burdened with an
   unfair or unqualified jury. .................................................................................... 12

CONCLUSION ........................................................................................................19

PRAYER ..................................................................................................................20

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................21




                                                             ii
                                INDEX OF AUTHORITIES
Cases

Bitterman v. State, 2007 Tex. App. LEXIS 7235 (Tex. App. – Austin 2007) ........10

Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) .....................................16

Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015)......................................7, 9

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................10

Darby v. State, 922 S.W.2d 614 (Tex. App. – Ft. Worth 1996) ............................6, 9

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ....................................13

Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) ............................12

Gonzalez v. State, 353 S.W.3d 826 (Tex. Crim. App. 2011) ...............................4, 18

Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998) ........................................20

Keeter v. State, 175 S.W.3d 756 (Tex. Crim. App. 2005) .......................................16

Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002) .....................................15

Mattingly v. State, 382 S.W.3d 611 (Tex. App. – Amarillo 2012) ............................9

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .........................4, 11

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) .......................................11

Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998) ...................................6, 12

Reynolds v. State, 227 S.W.3d 355 (Tex. App. – Texarkana 2007) ..........................4

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) .......................................5

Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001) .........................................5


                                               iii
Sarabia v. State, 227 S.W.3d 320 (Tex. App. – Ft. Worth 2007) .................... 6, 7, 9

Stinson v. State, 2009 Tex. App. LEXIS 3186 (Tex. App. – Dallas 2009) .............10

Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) .....................................17

United States v. Long, 574 F.2d 761 (3rd Cir. 1978) ................................................11

Vasquez v. State, 67 S.W.3d 229 (Tex. Crim. App. 2002) ......................................11

Wallace v. State, 782 S.W.2d 854 (Tex. Crim. App. 1989) ......................................7

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)...................................4

Wooley v. State, 2010 Tex. App. LEXIS 10306 (Tex. App. – Dallas 2010) .............9

Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977) ...................................16


Statutes

TEX. CODE CRIM. PRO. art. 35.16 .............................................................................16

TEX. PENAL CODE § 21.11 ..........................................................................................5


Rules

TEX. R. APP. P. 33.1 .................................................................................................13

TEX. R. EVID. 401 .......................................................................................................5

TEX. R. EVID. 402 .......................................................................................................8

TEX. R. EVID. 403 .......................................................................................................9




                                                           iv
                      No. 06-14-00178-CR through 06-14-00181-CR

                         IN THE SIXTH COURT OF APPEALS
                               TEXARKANA, TEXAS
                                  ________________

                             WILLIAM JAMES AKIN,
                                                            Appellant

                                                v.

                             THE STATE OF TEXAS,
                                                            Appellee
                                      ________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

       COMES NOW the State of Texas, by and through her assistant criminal

district attorney, and respectfully submits this brief in the above-styled and

numbered cause. This is an appeal from four convictions of child sexual abuse.

On October 24, 2013, Appellant was indicted in cause no. CR-13-24791 for the

offense of sexual assault of a child and on two cases of indecency with a child in

cause numbers CR-13-24795 and CR-13-24796.1 He was later indicted on a third

charge of indecency with a child in cause number CR-13-24979 (Cl. R., #CR-13-

24979, at 11). All four cases were tried together to a jury. The first jury was

selected on May 12, 2014, but could not reach a decision (Cl. R. at 9). The trial

court declared a mistrial and the parties selected a second jury on September 8,

1
  (Cl. R., # CR-13-24791, at 12); (Cl. R., # CR-13-24795, at 14); (Cl. R., # CR-13-24796, at 14);
for brevity’s sake, references to the clerk’s record will henceforth be to that in cause no. CR-13-
24791 unless specifically noted otherwise.
2014 (Cl. R. at 10). That jury found Appellant guilty of all four charges (Cl. R. at

10).    On September 12, 2014, the jury sentenced Appellant to 20 years

incarceration in each case (Cl. R. at 11). Appellant filed notice of appeal on

September 17, 2014 (Cl. R. at 169-70).

                             STATEMENT OF FACTS

       The State generally accepts Appellant’s recitation of fact except as more

fully set forth herein.


                          SUMMARY OF THE ARGUMENT

       Appellant’s first point of error complains that evidence admitted of his

recent internet searches for pornography, and of the images themselves, were not

relevant to his guilt, or alternatively, were unfairly prejudicial. He claims that the

images and search history could not be attributed to him because there were others

who had access to the computer on which the evidence was found. However, the

evidence was reasonably attributed to Appellant by circumstance and by testimony

of his family at trial. Additionally, evidence of the Appellant’s search history was

necessary to demonstrate his sexual desire, and by extension to establish that he

acted to arouse of gratify that desire when he sexually assaulted his young victim.

It was further relevant to rebut a defensive theory that the victim had falsely

accused Appellant because it tended to corroborate her testimony and dispel the


                                          2
suggestion of fabrication. The State limited the evidence to four exhibits, only two

of which were graphic, and the trial court admonished the jury that it could

consider the evidence only for its effect in establishing Appellant’s intent. Because

the evidence was relevant and necessary to the State’s case, and because it was

sufficiently limited before the jury, the trial court did not abuse its discretion in

admitting it, and Appellant’s first point of error should be overruled.

      Appellant’s second point complains that the trial court erred in granting the

State’s challenge for cause of a prospective juror. However, Appellant failed to

preserve this claim for appellate review because he did not make a specific

objection to the challenge at the time it was made. Moreover, Appellant later

waived his objection by affirmatively stating that he had no objection to the panel

as seated. Furthermore, even on its merits the claim fails because the juror, after

several equivocal answers to the State’s questions, eventually stated that he could

not convict based on the testimony of a single witness, even if that witness

convinced him beyond a reasonable doubt of the Appellant’s guilt. The trial court

thus properly excused the juror for cause because he had demonstrated he was

unable to follow a law upon which the State was entitled to rely. Finally, Appellant

is unable to demonstrate or even describe any harm resulting from the discharge of

this single juror. There is no indication that he was impaired in his defense, denied

his use of preemptory challenges, or forced to go to trial before an unfit or unfair

                                          3
jury. Because there is no harm attendant to the complained-of “error,” this Court

should overruled his point of error and affirm his conviction.

                                   ARGUMENT

      The decision to admit or exclude evidence rests within the sound discretion

of the trial court. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Likewise, a trial court’s decision to sustain or overrule a challenge for cause to a

potential juror is reviewed for an abuse of discretion. Gonzalez v. State, 353

S.W.3d 826, 831 (Tex. Crim. App. 2011). An abuse of discretion occurs when the

trial court acts “without reference to any guiding rules and principles.”

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Phrased

differently, a court abuses its discretion when it acts arbitrarily and unreasonably.

Reynolds v. State, 227 S.W.3d 355, 371 (Tex. App. – Texarkana 2007, no pet.).

However, as long as a court’s ruling is within a zone of reasonable disagreement, it

will not be disturbed on appeal. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.

Crim. App. 2001). In short, a trial court judge is given a “limited right to be

wrong,” as long as the result is not reached in an arbitrary or capricious manner.

Montgomery, 810 S.W.2d at 380.         Further, the trial court's ruling should be

affirmed if it is correct under any legal theory in the record. Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990).




                                         4
Appellant’s choice of pornography was relevant to show which acts would
arouse or gratify his sexual desire and to refute a defensive theory of
fabrication.

      Appellant complains that evidence of pornography recovered from his

computer and admitted at trial was not relevant. “Relevant evidence” is evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence. TEX. R. EVID. 401. In these cases, Appellant was charged by

three indictments with the offense of indecency with a child. That offense required

the State to prove, as an essential element of the crime, that the defendant acted

“with intent to arouse or gratify the sexual desire of any person.” TEX. PENAL CODE

§ 21.11(c); Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). Thus,

the nature and existence of Appellant’s sexual desire and the means of its

gratification are “facts of consequence to the determination” of his guilt, and any

evidence tending to make those facts more probable is relevant evidence. See

Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App. – Ft. Worth 2007, pet. ref’d).

Because “arousal,” “gratification,” “sexual desire,” and “intent” are all intangible

concepts, the State was permitted to prove them by circumstantial evidence. Darby

v. State, 922 S.W.2d 614, 620 (Tex. App. – Ft. Worth 1996, pet. ref’d).

      The evidence admitted as State’s exhibits 8, 9, 10, and 11 depicted not only

                                         5
images retrieved from Appellant’s computer, but also his search and browser

history. Thus, it provided insight not only into what images he viewed, but what

search terms he used and which websites he selected from those searches. The

pornographic images and themes depicted in State’s exhibits 8 through 11 were

therefore relevant circumstantial evidence of the Appellant’s sexual desire and, by

extension, the actions by which he might gratify that sexual desire. See Sarabia,

227 S.W.3d at 324-25. Accordingly, the exhibits were relevant for that purpose,

and the trial court did not abuse its discretion in admitting them over Appellant’s

objection.

      Appellant also complains that there was insufficient predicate established to

admit the exhibits because there was no direct evidence that Appellant searched

for, downloaded, or viewed the items depicted in State’s exhibits 8 through 11.

However, in deciding whether to admit evidence the trial court need only make a

preliminary determination that the proponent of the item has supplied facts

sufficient to support a reasonable jury’s conclusion that the proffered evidence is

what it purports to be. Butler v. State, 459 S.W.3d 595, *7-8 (Tex. Crim. App.

2015).       This preliminary determination may be made based on direct or

circumstantial evidence, provided there are sufficient “indicia of reliability” to

assure that the item is authentic and unaltered. Wallace v. State, 782 S.W.2d 854,

857-58 (Tex. Crim. App. 1989).

                                        6
      Here, there was sufficient circumstantial evidence to show that the images

contained in State’s exhibits 8 through 11 belonged to Appellant. First, the State

showed that the computer from which the images were retrieved belonged to

Appellant and was found in Appellant’s home (Ct. R. vol. 4, at 278-79). The State

also produced testimony that the computer was retrieved from Appellant’s

residence mere hours after his arrest, and that the content found had been searched

for and viewed within the past few days (Ct. R. vol. 4, at 279-280, 291). Although

Appellant shared the residence with his wife and children, each of them testified

that they did not make any of the searches or view any of the materials depicted in

State’s exhibits 8 through 11, and that no one outside of the house had access to the

computer (Ct. R. vol. 5, at 28, 35, 42, 45-46, 48-49). Moreover, Appellant’s wife

testified that although she had viewed pornography in the past with Appellant, he

was by far the most prolific consumer of internet pornography, and that he did so

with extreme regularity on that particular laptop (Ct. R. vol. 4, at 185-87). She

also testified that the main reason she stopped viewing pornography with the

Appellant was that his tastes had gravitated toward violent sexual imagery and

depictions of rape – such as those that were depicted in the exhibits – and that she

did not find those themes arousing (Ct. R. vol. 4, at 186). In sum, the State

produced sufficient “indicia of reliability” that the images retrieved from

Appellant’s laptop were what they were purported to be: objects of the Appellant’s

                                         7
internet browsing history and a reflection of his personal sexual interests. Under

the circumstances, the trial court did not abuse its discretion in admitting the

exhibits and allowing the jury to make the ultimate determination of authenticity.

See Butler, 459 S.W.3d at *7.

       Finally, Appellant contends that the images were not relevant because

Appellant did not show the material to the victim or otherwise use it in furtherance

of the sexual assault. However, the logical relevance of such evidence to show a

defendant’s sexual desires, and by extension his intent to arouse or gratify those

desires, does not turn on whether he then showed those images or otherwise

communicated those desires to his victim. They stand alone to show what a

defendant finds desirable, and what he seeks out to fulfill himself when left to his

own choices. Appellant cites precisely no authority to support such a requirement,

and the case law is replete with examples in which evidence of pornography was

admitted despite not having been shown to the intended sexual assault victims. 2

The trial court therefore did not abuse its discretion in finding the evidence

relevant, and Appellant’s point of error should be overruled.




2
  See, e.g., Sarabia v. State, 227 S.W.3d 320, 323-24 (Tex. App. – Ft. Worth 2007, pet ref’d);
Mattingly v. State, 382 S.W.3d 611, 615 (Tex. App. – Amarillo 2012, no pet.); Darby v. State,
922 S.W.2d 614, 620 (Tex. App. – Ft. Worth 1996, pet. ref’d); Wooley v. State, 2010 Tex. App.
LEXIS 10306 at *11 (Tex. App. – Dallas 2010, no pet.); Stinson v. State, 2009 Tex. App. LEXIS
3186 at *7-8 (Tex. App. – Dallas 2009, no pet.); Bitterman v. State, 2007 Tex. App. LEXIS 7235
(Tex. App. – Austin 2007, pet. dism’d).
                                              8
Evidence of the defendant’s choice of pornography was limited to prevent
substantially unfair prejudice.

      Appellant also complains that the prejudice attendant to the pornography

evidence substantially outweighed the probative value of that evidence to the

State’s case. Although generally speaking all relevant evidence is admissible ,3

even relevant evidence should be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. This does not

mean that the evidence is simply harmful to a party’s case, as virtually all evidence

is harmful to some degree (otherwise it would not be offered). Casey v. State, 215

S.W.3d 870, 883 (Tex. Crim. App. 2007). Rather, “unfair prejudice” means that

the evidence has an undue tendency to suggest a decision on an improper basis,

typically an emotional one, or that it has an adverse effect beyond tending to prove

the fact or issue that justifies its admission. Id.

      It is not enough that the evidence is prejudicial, or even that it is more

prejudicial that probative; the evidence must be unfairly prejudicial in order to be

excluded under rule 403. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App.

2002) (emphasis in original).4 A reviewing court should reverse a trial court’s

judgment under rule 403 “rarely and only after a clear abuse of discretion,”

because the trial court is in a superior position to gauge the impact of the relevant

3
 TEX. R. EVID. 402.
4
  See also Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (citing United
States v. Long, 574 F.2d 761 (3rd Cir. 1978).
                                            9
evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). The

proper inquiry under the rule is whether (1) the inherent probative force of the

evidence, along with (2) the proponent’s need for that evidence, is substantially

outweighed by (3) any tendency of the evidence to suggest a decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury

from the main issues, (5) any tendency of the evidence to be given undue weight

by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

      As noted, “intent to arouse or gratify the [defendant’s] sexual desire” is an

essential element of the crime of indecency with a child, an is an implicit element

of the offense of sexual assault of a child. Ochoa v. State, 982 S.W.2d 904, 908

(Tex. Crim. App. 1998). The State therefore had a distinct and substantial need for

evidence that would tend to prove that element. Barring direct testimony from the

Appellant himself, the State was forced to find other evidence of Appellant’s

sexual desire in order to meet its burden. Additionally, one defensive theory was

that the victim falsely accused Appellant in order to keep her sister and soon-to-be

step-mother close to her (Ct. R. vol. 2, at 27-29). The State therefore had a need to

refute this theory and rehabilitate the victim’s credibility.      Evidence of the

                                         10
defendant’s interest in sexual assault, particularly incestuous sexual assault of

young girls, tended not only to show just what Appellant sexually desired (young

girls in a familial relationship), but how he desired them (against their will). It also

tended to corroborate the victim’s testimony and show that she was being truthful

after she had been impeached, which was especially important given the lack of

DNA, physical evidence, or direct eyewitness testimony. It was thus strongly

probative and greatly needed by the State.

      Additionally, while Appellant’s pornography interests were certainly

disturbing, the evidence had little potential to impress the jury in some irrational

way. The themes depicted were generally in line with the actions Appellant was

accused of committing, and his possession or viewing of such themes in private

must have been less offensive to the jury than his actual commission of those acts

against an unwilling, underage participant. Moreover, the State did not spend an

inordinate amount of time developing the evidence, and it limited the evidence to

four exhibits, only two of which were graphic images. Finally, the trial court

expressly limited the jury to considering the exhibits only for “motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of mistake,” and

instructed that the jurors must be convinced beyond a reasonable doubt that the

exhibits had been proven to be attributed to Appellant (Ct. R. vol. 4, at 286). The

jury is presumed to have followed this instruction Gamboa v. State, 296 S.W.3d

                                          11
574, 580 (Tex. Crim. App. 2009). Because the evidence was itself limited, and the

jury’s consideration of said evidence was likewise limited, the danger of irrational

influence was minimal.

      Because the evidence contained in State’s exhibits 8 through 11 was

probative and necessary to the State’s case, and because it was not substantially

outweighed by the tendency to incite some irrational reaction from the jury, the

trial court did not err in admitting it over objection. Appellant’s point of error

should therefore be overruled.

Appellant’s second point of error presents nothing for review. The trial court
acted within its discretion and Appellant was not burdened with an unfair or
unqualified jury.

      Appellant complains that the trial court erred in excusing prospective juror

Horner for cause during the State’s voir dire. According to Appellant, the court

erroneously misinterpreted Horner’s answers regarding the “one witness rule” to

mean that he could not convict based solely on the testimony of one witness, even

if that one witness convinced him of all the elements of Appellant’s guilt beyond

all reasonable doubt. In reality, says Appellant, Horner simply intended to say that

he did not think one witness could convince him beyond all reasonable doubt

(Appellant’s br. at 21).

      As a preliminary matter, Appellant’s point of error presents nothing for

review because Appellant did not lodge a cogent objection at the time Horner was

                                        12
struck. The State’s attorney questioned Horner at some length about his feelings on

the “one witness rule,” and Horner’s responses were equivocal at best (Ct. R. vol.

2, at 69-75). Despite the prosecutor’s efforts to direct Horner’s attention to the

relevant question, Horner repeatedly gave ambiguous and non-committal answers.

He eventually indicated that he could convict if convinced beyond all reasonable

doubt, but stated that his analysis “could change” if all of the evidence came from

only one witness (Ct. R. vol. 2, at 73). As the prosecutor clarified his question,

Horner indicated that he understood all of the evidence (in the prosecutor’s

hypothetical scenario) would come from only one witness, but still refused to

answer because he was “having a hard time with one person totally changing

somebody’s life” (Ct. R. vol. 2, at 74-75). The prosecutor then stated directly, “So,

you would refuse to convict,” to which Horner answered, “Yeah” (Ct. R. vol. 2, at

75). At this point the State challenged Horner for cause (Ct. R. vol. 2, at 75).

Appellant’s counsel then questioned Horner briefly before stating, “Your Honor,

I’d object. He said he could listen and consider what the one witness told him” (Ct.

R. vol. 2, at 77). The trial court then sustained the challenge (Ct. R. vol. 2, at 77).

      In order to preserve an issue for appeal, the objecting party must make a

timely and specific objection and obtain a ruling from the trial court. TEX. R. APP.

P. 33.1; Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002). The

objection must inform the trial judge of the ruling sought and the legal and factual

                                           13
basis for that ruling. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App.

1977). This allows the judge to limit or correct any harm resulting from the

objected-to action and permits opposing counsel to cure any defect or offer

additional evidence on the issue. Id. at n.1.

      A “specific” objection must let the trial judge know what the objecting party

wants and why he thinks himself entitled to it, and must do so clearly enough for

the court and parties to understand. Keeter v. State, 175 S.W.3d 756, 760 (Tex.

Crim. App. 2005). A general objection – one that does not explicitly state the basis

for objection – will preserve error only if made in a context that puts the court and

parties on notice of the objecting party’s specific complaint.       Zillender, 557

S.W.2d at 517 . Additionally, the point of error raised on appeal must correspond

to the objection made at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.

App. 1995). An objection stating one legal theory may not be used to support a

different legal theory on appeal. Id.

      Appellant’s objection to the challenge of prospective juror Horner focused

on one issue: whether Horner could listen to and consider the evidence presented

by a single witness. This neither addressed the basis for the State’s challenge nor

does it correspond to his complaint on appeal. Because Appellant’s objection to

the State’s challenge was not specific at the time, it preserved nothing for review.

Moreover, because Appellant now raises a separate issue on appeal than he voiced

                                          14
in the trial court, he is likewise barred from asserting his claim. As such, his point

of error should be overruled.

      Even if Appellant’s objection is considered adequate to preserve error, he

then affirmatively waived that objection when the panel was finally seated. After

selection was complete, the trial court read the names to both the State and

Appellant and asked for specific objections from each side. In response to the

court’s question, “Any [objections] from the defense?” Appellant’s counsel

specifically stated, “No, your Honor” (Ct. R. vol. 2, at 205).

      The Court of Criminal Appeals has said that such waivers are context-

specific and should be considered along with the entirety of the record. Thomas v.

State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). If the record “plainly

demonstrates” that the defendant did not intend to waive previously lodged

objections, then the reviewing court should resolve the issue on the merits. Id. If,

however, a reviewing court simply cannot determine whether abandonment was

intended or understood by the trial court, then, “consistent with prior case law, it

should regard the ‘no objection’ statement to be a waiver of the earlier-preserved

error.” Id. at 885-86. Here, it is not plainly demonstrated in the record that

Appellant intended anything other than a waiver of his earlier, non-responsive

objection to the State’s challenge for cause. Indeed, it is likely because the

objection did not correspond to the stated grounds for challenge that counsel

                                         15
realized such an issue would be unsupportable on appeal. See Id. at 885.5 In any

event, there is not that “something more” that Thomas requires in the record to

show that Appellant meant anything other than abandonment of his previous

objection. Without that “something more,” his statement of “no objection” should

under Texas law be considered a waiver of the claim he now urges on appeal, and

his point should be overruled.

       Even if we reach the merits of Appellant’s point, his claim should be

overruled because he simply doesn’t carry his burden of establishing error. A trial

court’s ruling on a challenge for cause is reversible only if a clear abuse of

discretion is evident. Gonzalez v. State, 353 S.W.3d 826, 831 (Tex. Crim. App.

2011). A reviewing court should afford “great deference” to the trial court’s

decision because the trial judge is present to observe the demeanor of the

venireperson and to listen to his tone of voice. Id. Particular deference is due when

the venireperson’s answers are “vacillating, unclear, or contradictory.” Id.

       A venireperson is challengeable for cause if he or she has a bias or prejudice

against the defendant or against the law upon which either the State or the defense

is entitled to rely. Id.; TEX. CODE CRIM. PRO. art. 35.16(b)(3), (c)(2). The test is

whether the venireperson's bias or prejudice would substantially impair his ability


5
  Noting one possible reason for waiver to be, “[p]erhaps upon reflection the defendant has
assessed his chances of success on appeal to be negligible given the evidence produced during
the evidentiary hearing.”
                                             16
to carry out his oath and instructions in accordance with the law. Id. To establish a

proper basis for a challenge for cause, the proponent must show that the

venireperson understood the requirements of the law and still could not overcome

his prejudice well enough to follow the law. Id. at 832. That is, the law must be

explained to him, and he must be asked whether he can follow that it regardless of

his personal views. Id.

      Here, the law was clearly and patiently explained to prospective juror

Horner. He was instructed – and indicated that he understood – that the State is

entitled to a conviction if it proves all of the elements of a defendant’s guilt beyond

a reasonable doubt. He was further instructed, and further assented to

understanding, that this remains the case whether or not the State satisfies its

burden on the strength of a single witness’s testimony. Yet he equivocated in his

ability to following the law because he was troubled by “one person totally

changing somebody’s life” (Ct. R. vol. 2, at 74-75). The trial court reasonably

interpreted this statement to mean that, in Horner’s eyes, one person should not be

able to bring about a criminal conviction of another, no matter how convincing or

truthful they appear. Coupled with his direct statement mere seconds later that in

such a circumstance, he would refuse to convict, the trial court reasonably acted to

strike Horner for cause.

      Whether Horner’s statement could be interpreted to mean, as Appellant now

                                          17
suggests, that he personally could not be convinced beyond a reasonable doubt by

the testimony of one witness is irrelevant. The fact that he was “vacillating,

unclear, [and] contradictory” means that this Court should be “particularly

deferential” to the interpretations and ruling of the trial court. Because the court

did not operate outside of the zone of reasonable disagreement, its ruling on the

State’s challenge for cause should be affirmed, and Appellant’s point of error

overruled.

      Finally, even if this Court finds the trial court’s ruling was error, Appellant’s

point should be overruled because he has failed to show that he was denied a fair

trial by an impartial jury. See Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim.

App. 1998). The long-standing rule in Texas is that the erroneous excusing of a

veniremember will call for reversal only if the record clearly shows that the error

deprived the defendant of a lawfully constituted jury. Id at 394. This standard,

over a century old, upholds the policy long endorsed by the Court of Criminal

Appeals: the liberal granting of challenges for cause. Id. In that Court’s opinion,

the venire comprises so many jurors who are clearly qualified that it is unnecessary

to err by denying a challenge for cause on a close question. Id. A criminal

defendant does not have a right to have any particular person serve on his jury,

only that the jurors who do serve are qualified to do so. Id. at 393. That is, the

defendant’s rights go to those who serve on the jury, not to those who are excused.

                                         18
Id.

      Here, there is absolutely no showing in the record that the jurors who were

eventually selected to Appellant’s jury were anything but qualified, fair, and

impartial. Appellant’s misplaces considerable effort complaining that a similarly

situated criminal appellant could never demonstrate harm. The fact is that

Appellant cannot even describe harm, let alone demonstrate it. He simply asks this

Court to assume that because this particular juror was excused, and because he

(sort of) objected at the time, there must be some harm somewhere. Such a tenuous

conclusion cannot be a sufficient showing to justify appellate reversal of a criminal

conviction. Therefore, under long-standing precedent, this Court should conclude

there was no harm and should overrule Appellant’s point of error.

                                 CONCLUSION

      Under the indictments in this case, the State was required to prove that the

Appellant acted to arouse or gratify his sexual desire by engaging in sexual contact

with his underage victim. This required not only a showing of Appellant’s sexual

appetite, but the means by which he might go about satiating it. Given the lack of

direct evidence on the matter, the State was required to use circumstantial evidence

of his tastes in pornography in order to meet its burden. Additionally, Appellant’s

recent pornographic searches and images were relevant to refute the defensive

theory that he was falsely accused, because they tended to corroborate the victim’s

                                         19
version of events. Because the evidence of Appellant’s taste in pornography was

limited in its presentation (by the State) and its permitted scope (by the trial court)

there was little danger of unfair prejudice. As such, the trial court did not err in

admitting the evidence, and Appellant’s first point of error should be overruled.

      Appellant’s second point should also be overruled because it was not

preserved for appeal. Appellant’s objection at the time the State moved to strike a

veniremember for cause did not address the State’s grounds for challenge, and thus

did not constitute a timely and specific objection necessary to preserve error.

Moreover, Appellant subsequently waived any objections once the entire panel was

seated. Even if Appellant preserved error, the trial court did not abuse its discretion

in striking the potential juror because his comments reasonably indicated that he

could not follow an aspect of law upon which the State was entitled to rely.

Finally, any error in excusing the juror was harmless because there is no indication

that his excuse caused an unfair or unqualified jury to sit in Appellant’s case.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, there being no reversible error

in the trial of this case, the State respectfully moves this Court to overrule

Appellant’s points of error and affirm his conviction. The State further prays for

any and all such additional relief as the Court may deem just and appropriate.

      Dated: July 20, 2015

                                          20
                                             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 4,722

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


                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing was served electronically to the individual listed below on this the 20th

day of July, 2015.



                                             /s/   John B. Setterberg

                                        21
                              John B. Setterberg
                              Assistant Criminal District Attorney
                              Fannin County, Texas


Steven R. Miears
211 N. Main
Bonham, Texas 75418
ATTORNEY FOR APPELLANT




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