PD-1385_1388-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/10/2015 1:13:00 PM
Accepted 11/10/2015 4:26:31 PM
ABEL ACOSTA
CLERK
PD-1385-15 through PD-1388-15
TO THE
COURT OF CRIMINAL APPEALS
OF TEXAS
________________
WILLIAM JAMES AKIN,
Appellant
v.
November 10, 2015
THE STATE OF TEXAS,
Appellee
________________
On Appeal in Cause Nos.
CR-13-24791, CR-13-24795, CR-13-24796, and CR-13-24799
From the 336th District Court
of Fannin County, Texas,
and in Cause Nos. 06-14-00178-CR through 06-14-00181-CR
From the Sixth Court of Appeals
In Texarkana, Texas
__________________________________________________________________
STATE’S RESPONSE TO
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
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
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
INDEX OF AUTHORITIES..................................................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF THE CASE ..................................................................................1
REPLIES TO QUESTION FOR REVIEW ...............................................................2
ARGUMENT .............................................................................................................2
1. Petitioner seeks mere correction of what he considers to be error, rather
than resolution of an important and unresolved issue in Texas jurisprudence. ..... 2
2. Petitioner requests that which has already been given. Established
precedent requires an appellate court to consider the prejudicial effect of
wrongly-admitted evidence when it analyzes harm. .............................................. 4
CONCLUSION ..........................................................................................................6
PRAYER ....................................................................................................................7
CERTIFICATE OF COMPLIANCE .........................................................................7
CERTIFICATE OF SERVICE ..................................................................................8
i
INDEX OF AUTHORITIES
Cases
Baxter v. State, 66 S.W.3d 494 (Tex. Crim. App. 2001) .......................................3, 4
Bradley v. State, 235 S.W.3d 808 (Tex. Crim. App. 2007) .......................................2
Degrate v. State, 712 S.W.2d 755 (Tex. Crim. App. 1986) ......................................4
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ...............................5
Russell v. State, 113 S.W.3d 530 (Tex. App. – Ft. Worth 2003)...............................5
Rules
TEX. R. APP. P. 44.2(a) ...............................................................................................4
TEX. R. APP. P. 66.2 ...................................................................................................2
TEX. R. APP. P. 66.3 ...............................................................................................2, 3
ii
PD-1385-15 through PD-1388-15
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
________________
WILLIAM JAMES AKIN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW the State of Texas, Appellee, by and through her assistant
criminal district attorney, and respectfully submits this Response to Petition for
Discretionary Review in the above-styled and numbered causes.
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
This is an appeal from several convictions for child sexual abuse. The court
of appeals determined that admission of certain photographs at the guilt/innocence
stage of trial was error, but that the error was harmless. The court therefore
affirmed each of Appellant’s convictions and sentences.
1
REPLIES TO QUESTION FOR REVIEW
1. Petitioner seeks mere correction of what he considers to be error, rather than
resolution of an important and unresolved issue in Texas jurisprudence.
2. Petitioner requests that which has already been given. Established precedent
requires an appellate court to consider the prejudicial effect of wrongly-
admitted evidence when it analyzes harm.
ARGUMENT
Discretionary review by this Court is not a matter of right, but of the Court’s
sound discretion. TEX. R. APP. P. 66.2. The principle role of this Court, as a court
of last resort, is as the caretaker of Texas law. Bradley v. State, 235 S.W.3d 808,
810 (Tex. Crim. App. 2007). It is not a court of “error correction,” and does not
exist merely to re-consider issues that a court of appeals has already decided. Id.
Rather, the legal issues brought to and considered by this Court should be “of great
importance to the jurisprudence of the state.” Id.; see TEX. R. APP. P. 66.3.
Otherwise, this Court should not to expend its “scarce judicial resources” to review
an opinion of a court of appeals. Bradley, 235 S.W.3d at 809.
1. Petitioner seeks mere correction of what he considers to be error, rather
than resolution of an important and unresolved issue in Texas
jurisprudence.
In the court below, Petitioner claimed error in the trial court’s decision to
admit evidence of pornography and internet searches taken from his computer. The
court of appeals found that the visual evidence of the pornography – screen shots
of open webpages and of Petitioner’s search history – was irrelevant and its
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admission was indeed error. However, it also considered the error to be harmless
and affirmed Petitioner’s convictions. Petitioner now complains that the court of
appeals did not properly consider harm.
The standard for harm analysis of non-constitutional error is well settled in
Texas. Petitioner nominally argues that the lower court’s opinion conflicts with
those of this Court and with other courts of appeals. See TEX. R. APP. P. 66.3.
However in reality, his complaint simply asks this Court to reconsider the appellate
court’s harm analysis and reach a different result.
Petitioner appears to summarize the lower court’s analysis as “whether there
was enough evidence to support the result.” This ignores the very text of the
opinion. The court of appeals acknowledged the requirement that a reviewing
court consider harm in light of all of the evidence presented at trial. See Baxter v.
State, 66 S.W.3d 494, 499 (Tex. Crim. App. 2001). While the court of appeals did
consider testimony describing the complained-of images as “other unchallenged
evidence prov[ing] the same facts,” it also considered the victim’s “clear account”
of the assault, the testimony of two eyewitnesses who saw Petitioner acting
inappropriately with the victim, and the testimony of the victim’s step-mother, who
corroborated the victim’s outcry. It weighed the likely impact of the images against
the bulk of the evidence against Petitioner, in light of the emphasis placed on them
in the State’s arguments, and determined that it had a “fair assurance that the
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improperly admitted evidence did not influence the jury, or would have only a
slight influence on the jury.” This is precisely what the law requires.
The assertion that the court of appeals was in error as to some point of law,
standing alone, is generally insufficient to require further review. Degrate v. State,
712 S.W.2d 755, 756 (Tex. Crim. App. 1986). Because Petitioner has done little
more than ask for a “re-do” of the lower court’s opinion, and because the issue he
raises is fact-specific and of little value to the State’s jurisprudence as a whole, this
Court should decline to exercise its discretionary authority and should deny the
petition.
2. Petitioner requests that which has already been given. Established
precedent requires an appellate court to consider the prejudicial effect
of wrongly-admitted evidence when it analyzes harm.
When confronted with non-constitutional error, a reviewing court must not
reverse a judgment unless a substantial right of the defendant is affected. TEX. R.
APP. P. 44.2(b). If, after examining the entire record, the court has “a fair
assurance that the error did not influence the jury, or had but a slight effect,” then
the error should be disregarded as harmless. Baxter v. State, 66 S.W.3d 494, 499
(Tex. Crim. App. 2001). The question is not whether there was sufficient evidence
to support the conviction apart from that which was erroneously admitted. Rather,
it is whether the tainted evidence, in the context of the entire trial, so undermined
the jury’s decision-making as to cast doubt on the verdict. Russell v. State, 113
4
S.W.3d 530, 549-50 (Tex. App. – Ft. Worth 2003). The key to this analysis is that
the error is considered in context, and the magnitude of its harm judged in light of
every other relevant argument, exhibit, and comment to the jury. See Baxter, 66
S.W.3d at 499.
Petitioner asks this Court to implement an entirely new and undefined harm
analysis for non-constitutional error. Purportedly, this new standard would be
based on the factors discussed in Montgomery v. State for evaluating the admission
of evidence under Rule 403. 810 S.W.2d 372, 377 (Tex. Crim. App. 1991).
Petitioner does not explain what this new test would look like, other than to include
a consideration of whether wrongfully-admitted evidence has a potential “to
impress the jury in some irrational, yet indelible way.” This, of course, would
require a reviewing court to evaluate the impact of tainted evidence in light of
everything else at trial – something an appellate court is already required to do –
and to reach a subjective conclusion about the likelihood of improper influence on
the verdict (something it must also do). Petitioner further posits that the burden of
showing harm should not be on the Appellant, but “on the party who gained by the
evidence.” This is likewise already established law, as a defendant is not required
to prove harm, and an appellate court is instead obligated to judge harm from the
context of the error. Russell, 113 S.W.3d at 550.
In short, Petitioner asks this Court to grant review for the vague purpose of
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implementing a new standard of harm analysis, which from all appearances is the
same as the standard currently in place and used by the court of appeals. This new
standard, such as it is, is neither preferable nor necessary, and this court should not
grant discretionary review simply to revisit a lower court’s routine application of
established precedent to an otherwise unremarkable set of facts.
CONCLUSION
Petitioner asks this Court to review a fact-specific decision of the court of
appeals that has little if any impact on the rest of Texas jurisprudence. Moreover,
he asks this Court to overrule a proper application of non-constitutional harm
analysis and substitute in its place a virtually identical replacement. Because his
complaint is not significant enough to warrant further review, and because it fails
to give sufficient reason for such a “modification” of existing law, this Court
should decline to exercise discretionary review and deny the petition.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully
prays this Court deny the petition for discretionary review. The State further
requests all such additional relief as may be deemed just and appropriate.
Dated: November 10, 2015
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 1,148
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
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing was served electronically to the individuals listed below on this the 10th
day of November, 2015.
/s/ John B. Setterberg
John B. Setterberg
Assistant Criminal District Attorney
Fannin County, Texas
Steven R. Miears
211 North Main St.
Bonham, Texas 75418
ATTORNEY FOR APPELLANT
Lisa McMinn
P.O. Box 12405
Austin, Texas 78711
STATE PROSECUTING ATTORNEY
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