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).
2
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).
3
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.”
4
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.”
5
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
6
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.
7
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.
8
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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