PD-0214-15, PD-0215-15 & PD-0216-15 COURT OF CRIMINAL APPEALS PD-0214&0215&0216-15 AUSTIN, TEXAS Transmitted 3/3/2015 12:43:18 PM Accepted 3/6/2015 10:18:18 AM ABEL ACOSTA NO.___________________ CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS
NO. 14-13-00682-CR NO. 14-13-00683-CR NO. 14-13-00684-CR IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS AT HOUSTON
TRIAL COURT CAUSE NOS. 1324897, 1324898 & 1324899 IN THE 351ST DISTRICT COURT OF HARRIS COUNTY, TEXAS
MARK DOUGLAS ROBISON, Appellant
VS.
THE STATE OF TEXAS, Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Nicole DeBorde Bires Schaffer and DeBorde SBOT 00787344 March 6, 2015 712 Main Street, Suite 2400 Houston, Texas 77002 (713) 228-8500 – telephone (713) 228-0034 – facsimile Nicole@BSDLawFirm.com ORAL ARGUMENT REQUESTED Attorney for Appellant MARK DOUGLAS ROBISON STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. PROC. 68.4(c), appellant requests oral argument.
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Mark Douglas Robison
PRESIDING JUDGE: Hon. Susan Brown 351st District Court 1201 Franklin Houston, Texas 77002
TRIAL PROSECUTORS: Shannon Davis Lacy Johnson Assistant District Attorneys 1201 Franklin Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Thomas A. Martin Attorney at Law 1018 Preston, Suite 500 Houston, Texas 77002 STATE’S APPELLATE COUNSEL: Hon. Devon Anderson Harris County District Attorney 1201 Franklin Houston, Texas 77002
Jessica Akins Assistant District Attorney 1201 Franklin Houston, Texas 77002
DEFENSE COUNSEL ON APPEAL: Nicole DeBorde Attorney at Law 712 Main Street, Suite 2400 Houston, Texas 77002
1 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................vi, v
STATEMENT REGARDING ORAL ARGUMENT ................................................i
STATEMENT OF THE CASE .................................................................................vi
STATEMENT OF PROCEDURAL HISTORY........................................................ 6
GROUND FOR REVIEW NUMBER ONE .............................................................. 7
Is the denial of admission of books, which were authored by Appellant and which outlined Appellant’s affirmative defense, into evidence constitutional error requiring the Court of Appeals to determine whether it was satisfied that the error did not contribute to Appellant’s conviction beyond a reasonable doubt?
ARGUMENT .............................................................................................................8
GROUND FOR REVIEW NUMBER TWO ............................................................. 9
In Penry v. State, Cook v. State and Estrada v. State, did this Court, by deciding that a contemporaneous objection is always required to preserve prosecutorial misconduct for appellate review, decide an important question of state law in conflict with the Supreme Court of United States which holds that prosecutorial misconduct is fundamental error?
ARGUMENT ...........................................................................................................10
PRAYER FOR RELIEF ..........................................................................................14
CERTIFICATE OF COMPLIANCE .......................................................................15
2 CERTIFICATE OF SERVICE ................................................................................16
APPENDIX ........................................................................................................... A-1
3 INDEX OF AUTHORITIES
CASES PAGE
Cockrell, 933 S.W.2d 73, 89 (Tex.Crim.App.1996)...............................................10
Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984)...................................10
Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993)...................................8
Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)......7
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).....................................................................................................................11
Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010)...............................8
Hajjar v. State, 176 S.W. 3d 554, 566 (Tex. App.—Houston [1st. Dist] 2004, pet. ref’d)..........................................................................................................................9
Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006)..................................................................................................................7
Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim. App. 2009)..........................7
Parker v. Matthews, 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012)....................11
Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995)..................................8
Robison v. State, No. 14-13-00682-CR, --S.W.3d--, 2015 WL 293269, at *9 (Tex. App.—Houston [14th Dist.] Jan. 22, 2015, no pet h.)...............................................9
Woodfox v. Cain, 609 F.3d 774, 806 (5th Cir.2010)...............................................11
Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989)................................11
4 STATUTES AND RULES
Tex. R. App. Proc. 25.2.............................................................................................7
Tex. R. App. P. 66.3..................................................................................................9
Tex. R. App. Proc. 68.4.............................................................................................1
5 TO THE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
An investigation conducted by Investigator Nassar Foty of the Harris County
Precinct 4 Constable’s office resulted in Appellants conviction for three counts of
possession of child pornography. (III R.R. at 21; V. R.R. at 25). Foty obtained a
search warrant after identifying child pornography available for sharing through
Appellant’s IP address. (III R.R. at 21). The search yielded images and video
consistent with child pornography. (IV R.R. at 20). Appellant testified at trial that
he possessed the material at issue for a bona fide educational purpose. (IV R.R. at
53). Appellant attempted to introduce two books he wrote to show that he was
studying child pornography because he wanted to write solutions in the more
recent book on how to solve the real problem of children being abused. (IV R.R. at
66, 84, 86-88). The trial court sustained the State’s objection and excluded
admission of both books, preventing Appellant from presenting the affirmative
defense of possession of child pornography for a bona fide educational purpose.
(IV R.R. at 66, 86-88).
STATEMENT OF PROCEDURAL HISTORY
On December 19, 2011, Appellant was charged by indictment with three
counts of Possession of Child Pornography in Cause Nos. 1324897, 1324898, and
1324899. (C.R. at 17 for Cause No. 1324897; C.R. at 16 for Cause No. 1324898; 6 C.R. at 14 for Cause No. 1324899). Appellant was brought to trial on June 17,
2013. (II R.R. at 1). Appellant entered a plea of not guilty to all charges. (III R.R.
at 6). The jury found Appellant guilty of all three charges of Possession of Child
Pornography. (V. R.R. at 25). The jury assessed his punishment for all three cases
at confinement in the Texas Department of Criminal Justice for 10 years and a fine
of $10,000 and recommended that the sentences be probated. (VII R.R. at 4-5).
Appellant gave timely notice of appeal in accordance with Tex. R. App. Proc.
25.2(a)). (C.R. 138-139, 153 for Cause No. 1324897; C.R. 136-37, 152 for Cause
No. 1324898; C.R. 134-35, 150 for Cause No. 18324899
On January 22, 2015, the Fourteenth Court of Appeals affirmed the
judgments of the trial court. Robison v. State, No. 14-13-00682-CR, --S.W.3d--,
2015 WL 293269, at *9 (Tex. App.—Houston [14th Dist.] Jan. 22, 2015, no pet
h.). No motion for rehearing was filed. Appellant now timely petitions this
Honorable Court for discretionary review.
Appellant presents two (2) grounds for review before this Honorable Court.
APPELLANT’S FIRST GROUND FOR REVIEW
Is the denial of admission of books, which were authored by Appellant and which outlined Appellant’s affirmative defense, into evidence constitutional error requiring the Court of Appeals to determine whether it was satisfied that the error did not contribute to Appellant’s conviction beyond a reasonable doubt?
7 ARGUMENT
If the appellate record reveals a constitutional error the court must reverse a
judgment of conviction, unless it determines beyond a reasonable doubt that the
error did not contribute to the conviction. Holmes v. State, 323 S.W.3d 163, 173-
74 (Tex. Crim. App. 2009). Appellant complained in Issue Number One of
Appellant’s Brief that the trial court’s exclusion of Appellant’s two books is
reversible error because it denied him the right to present the affirmative defense of
possession of child pornography for a bona fide educational purpose. Robison v.
State, No. 14-13-00682-CR, --S.W.3d--, 2015 WL 293269, at *2 (Tex. App.—
Houston [14th Dist.] Jan. 22, 2015, no pet h.). Specifically, Appellant complained
that he had the right to present a defense under the Sixth Amendment to the United
States Constitution and Article I, section 10 of the Texas Constitution. (Appellant’s
Brief at p. 9). The Court of Appeals conducted a nonconstitutional error harm
analysis without deciding that the books should have been admitted. Robison,
2015 WL 293269, at *3.
Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’ ” Holmes v. South Carolina, 547 U.S.
319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006) (quoting Crane v. 8 Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636) (1986) (emphasis
added). The denial of the right to present a defense is constitutional error and the
Court of Appeals erred by conducting a nonconstitutional harm analysis in
Appellant’s case after the trial court sustained the state’s objection to the admission
of Appellant’s books.
In the instant case the Court of Appeals erred by limiting its review to
whether the exclusion of the books affected Appellant’s substantial rights instead
of whether the Court was satisfied beyond a reasonable doubt that the error did not
contribute to Appellant’s conviction. The Court of Appeals analyzed harm under
an incorrect legal standard because Appellant specifically complained that he was
denied the right to present a defense, and the right to present a defense is
constitutional error. The appropriate review in this circumstances pursuant to Tex.
R. App. P. 66.3(c). This case should be remanded to the Court of Appeals to
conduct a proper harm analysis.
APPELLANT’S SECOND GROUND FOR REVIEW
In Penry v. State, Cook v. State and Estrada v. State, did this Court, by deciding that a contemporaneous objection is always required to preserve prosecutorial misconduct for appellate review, decide an important question of state law in conflict with the Supreme Court of United States which holds that prosecutorial misconduct is fundamental error?
9 ARGUMENT
Appellant complained in Issue Number Three of Appellant’s Brief that the
prosecutor engaged in misconduct by asking improper questions and making
improper comments during trial and closing argument. Robison v. State, No. 14-
13-00682-CR, --S.W.3d--, 2015 WL 293269, at *9 (Tex. App.—Houston [14th
Dist.] Jan. 22, 2015, no pet h.). Appellant complained the prosecutor engaged in
prosecutorial misconduct: 1) by continuously questioning Appellant, and
witnesses, regarding the invocation of Appellant’s right to remain silent, and 2) by
the improper use of Appellant’s silence to impeach his trial testimony.
(Appellant’s brief at pg. 24). Appellant further complained the errors violated his
fundamental right to a fair trial because the errors deprived him of the right to be
free from compelled self-incrimination under the Texas and Federal Constitution
and eviscerated his affirmative defense of possession of child pornography for a
bond fide educational purpose, which was the sole contested issue during trial.
Citing Hajjar v. State, the Court of Appeals overruled the issue stating,
“error regarding prosecutorial misconduct must be preserved by a timely objection
at trial, followed by a ruling or a refusal to rule from the trial court.” Hajjar, 176
S.W. 3d 554, 566 (Tex. App.—Houston [1st. Dist] 2004, pet. ref’d). Hajjar, which
relies on Cook v. State and Penry v. State, stands for the proposition that an
10 objection is the proper method for preserving error in cases of prosecutorial
misconduct. Id. Hajjar’s reliance on Cook and Penry is misplaced.
In Cook v. State, this Court held that to preserve a jury argument error for
appellate review the defendant must make an objection, request an instruction to
disregard, and make a motion for mistrial. Cook, 858 S.W.2d 467, 473 (Tex. Crim.
App. 1993) (citing Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984). In
Penry v. State, the defendant moved for a mistrial based on an improper jury
argument made by the State but failed to make a contemporaneous objection or
move for an instruction to disregard. Penry, 903 S.W.2d 715, 764 (Tex. Crim.
App. 1995). Reliance on both of these cases is misplaced because the defendant in
Cook and Penry alleged on appeal that the prosecutor’s argument was improper but
did not allege, as Appellant has, that prosecutorial misconduct had occurred. Id. at
473.
In Estrada v. State, this Court held the defendant failed to preserve for
appellate review any error in the State's opening statement and closing argument
when he failed to object or ask for a mistrial. Estrada, 313 S.W.3d 274, 303 (Tex.
Crim. App. 2010). Defendant argued on appeal he was deprived of a fair trial
because of repeated prosecutorial misconduct that occurred during the guilt
innocence phase of his trial. Id. This Court declined to address the defendant’s
argument citing Cockrell v. State as the case that overruled the exception Willis v. 11 State. Id.; Cockrell, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (citing Willis, 785
S.W.2d 378, 385 (Tex. Crim. App. 1989); overruling recognized by Estrada, 313
S.W.3d at 303 (acknowledging a now overruled exception to the waiver rule for
cases in which the prosecutor's argument is so egregious that no instruction to
disregard could possibly cure the harm).
In Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986), the United States Supreme Court explained that a prosecutor's improper
comments violates constitutional principals if it “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431
(1974)). The Fifth Circuit has explained that to establish that the prosecutor's
remarks were be so inflammatory as to violate due process, the defendant must
demonstrate the misconduct was persistent and pronounced or the evidence of guilt
was so insubstantial the conviction would not have occurred but for the improper
remarks. Woodfox v. Cain, 609 F.3d 774, 806 (5th Cir.2010) (holding “Improper
prosecutorial remarks are constitutionally unfair only if they are persistent and
pronounced, or if the evidence is so weak that no conviction would have occurred
but for the remarks.”). In Parker v. Matthews, the United States Supreme Court
stated that the Sixth Circuit erred by consulting its own precedents rather than the
precedent set by the Supreme Court. 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 12 (2012). In that case, the prosecutor made inappropriate remarks during closing
argument constituting prosecutorial misconduct. Id. at 2154.
In this case, the Court of Appeals and this court erred by consulting its own
precedents rather than the precedent set by the Supreme Court and the
prosecutorial misconduct was persistent and pronounced which required the Court
of Appeals to determine whether Appellant’s due process rights were violated.
The prosecutor repeatedly alluded to Appellant’s silence both in argument and
during the questioning of Appellant and his witnesses. The result was the denial of
Appellant’s right to testify free from improper impeachment and denial of a fair
trial in violation of fundamental due process rights. Under Parker and Darden, an
appellate court should conduct an analysis to determine whether the prosecutor’s
argument so infected the trial with unfairness as to make the resulting conviction a
denial of due process rather than summarily dismissing the error because an
objection was not made. If the reviewing court determines the prosecutor’s
misconduct did not infect the trial with unfairness then the contemporaneous
objection rule should apply. However, if the reviewing court determines the
remarks did infect the trial with unfairness then in accordance with United States
Supreme Court precedent an objection should not be required to preserve the claim
for appellate review.
13 In holding that prosecutorial misconduct always requires an objection to
preserve review, the Court of Appeals and this Court has decided an important
question law in a way that conflicts with the applicable decisions of the Supreme
Court of the United States such that discretionary review in this matter is warranted
pursuant to Tex. R. App. P. 66.3(c). Accordingly, review is warranted pursuant to
Tex. R. App. P. 66.3(c).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Honorable Court grant this Petition for Discretionary Review. Following the grant
of review, Appellant prays that the judgment of the Court of Appeals be reversed
and a new trial ordered, or the case remanded for further review.
Respectfully submitted,
/s/ Nicole DeBorde Nicole DeBorde BIRES SCHAFFER AND DEBORDE Texar Bar No. 00787344 712 Main Street, Suite 2400 Houston, Texas 77002 (713) 228-8500 – Telephone (713) 228-0034 – Facsimile Email: Nicole@BSDLawFirm.com
Attorney for Appellant, MARK DOUGLAS ROBISON
14 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
counsel of record certifies that the Petition for Discretionary Review contains 2,682
words.
/s/ Nicole DeBorde Nicole DeBorde
15 CERTIFICATE OF SERVICE
I hereby certify that a true copy of Appellant’s petition for discretionary
review has been either personally served upon or mailed by U.S. Postal Service
certified mail, return receipt requested, on March 3, 2015, to the following persons:
Devon Anderson District Attorney 1201 Franklin, Suite 600 Houston, Texas 77002
State Prosecuting Attorney P.O. Box 12405 Austin, Texas 78711
16 APPENDIX
A-1