PD-0422-15
COURT OF APPEALS NO. 03-14-00236-CR
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
KEVIN TODD HARDIN,' FTJ~CEiiV£D 5W
Appellant/Petitioner COillii 07 C^^J-l A!v£AI.S
v. OCT 01 2015
THE STATE OF TEXAS, ^V,N.-.',
Appellee/Respondent
On appeal from the Third Court of Appeals
Austin, Texas
PETITIONER'S MOTION FOR REHEARING
FILED m
COURT OF CRIMINAL APPEW c
cgt o i z::3
KEVIN TODD HARDIN
Abel Acosta, Clerk PETITIONER
TDCJ No. 01920319
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
PD-0422-15
COURT OF APPEALS NO. 03-14-00236-CR
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
KEVIN TODD HARDIN,
Appellant/Petitioner
v.
THE STATE OF TEXAS,
Appellee/Respondent
On appeal from the Third Court of Appeals
Austin, Texas
PETITIONER'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
KEVIN TODD HARDIN, Appellant/Petitioner, submits to the Court
his Motion for Rehearing, pursuant to Rule 79 of the Texas Rules
of Appellate Procedure, and respectfully requests that the Court
reconsider his Petition for Discretionary Review, which Presiding
Judge S. Keller would grant.
POINT RELIED ON FOR REHEARING
The Third Court of Appeals erred in overruling Petitioner's
point that the trial court should have sustained his objection to
improper jury argument by the State regarding parole and good time
credit, which the Third Court of Appeals conceded was improper,
but remarkably found that the comments were harmless and did not
1
affect his substantial rights.
ARGUMENT AND AUTHORITIES
Petitioner respectfully urges the Court to reconsider its
ruling that Petitioner's Petition for Discretionary Review should
be refused. As acknowledged by Presiding Judge S. Keller in her
willingness to grant review, a refusal to review the decision of
the Third Court of Appeals would leave in•tack' a decision that con
flicts with decisions of other courts of appeals and has decided
an important question of state law in a way that conflicts with
the applicable decisions of this Court.
As more fully developed in Petitioner's petition, the State
presented to the jury an improper argument concerning the specific
amount of time Petitioner would be required to do in actual time
served, considering he would receive good time on his "quarter-
time offense." The State even went to the extent of calculating
for the jury the number of years Petitioner would have to do in
actual time if he received a 40 and then a 60 year sentence. RR4:
49-52.
In the Third Court of Appeals' memorandum opinion, the Court
tacitly concedes that the State's comments were improper. See
Hardin v. State, No. 03-14-00236-CR (Tex.App.-Austin March 25,
2015). In contrast to other courts of appeals' decisions, the
Third Court of Appeals somewhat remarkably found that the State's
improper comments, which likely increased Petitioner's sentence,
were harmless and did not affect his substantial rights. See Id.
When all of the factors in assessing harm are considered and
balanced, the trial court's error in overruling Petitioner's ob-
jections to the improper jury argument by the State regarding the
application of parole and good time credit, cannot be said to be
harmless - that it did not have a substantial effect on the jury's
verdict.
In short, Petitioner respectfully asks the Court to recon
sider its conclusion that his Petition for Discretionary Review
should be refused. Petitioner further requests that after consid
eration the Judges of the Court join the Presiding Judge in grant
ing his Petition for Discretionary Review.
PRAYER
For the foregoing reasons, Petitioner Kevin Todd Hardin re
quests that this Court grant this motion for rehearing, withdraw
its prior judgment, and issue a judgment granting his Petition for
Discretionary Review.
Dated: September 23, 2015. Respectfully submitted,
KEVIN TODD HARDIN
PETITIONER
TDCJ No. 01920319
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
PETITIONER'S CERTIFICATE
I hereby certify that the reason for requesting reconsidera
tion is based on the specific circumstances stated within the fore
going motion and that the motion is made in good faith and not for
delay.
^0dh
KEVIN TODD HARDIN
PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going motion has been served by placing same in the United States
Mail, postage prepaid, on the 23rd day of September, 2015, adressed
to:
State Prosecuting Attorney
Post Office Box 13046
Austin, Texas 78711-3046
Burnet County District Attorney's Office
Gary W. Bunyard
Assistant District Attorney
Post Office Box 725
Llano, Texas 78643
i
KEVIN TODD HARDIN
PETITIONER