Hardin, Kevin Todd

• Court: Texas Supreme Court
• Decided: October 1, 2015
• Docket: PD-0422-15
• Status: Published

Opinion

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

KEVIN TODD HARDIN, Appellant/Petitioner

v.

THE STATE OF TEXAS, Appellee/Respondent

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