Akin, William James ( 2015 )

PD-1385_1388-15 PD-1385_PD-1388-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/23/2015 2:22:29 PM
Accepted 10/27/2015 3:56:01 PM
ABEL ACOSTA
CAUSE NUMBER __________________ CLERK
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
WILLIAM JAMES AKIN
PETITIONER
v.
THE STATE OF TEXAS
PETITION FOR DISCRETIONARY REVIEW
IN TRIAL COURT CAUSE NUMBERS: CR-13-24791; CR-13-24795;
CR-13-24796; CR-13 24979 FROM THE 336TH JUDICIAL DISTRICT COURT OF
FANNIN COUNTY, TEXAS
AND FROM THE
THE COURT OF APPEALS FOR THE SIXTH
COURT OF APPEALS IN TEXARAKANA, TEXAS
CASE NUMBERS: 06-14-00178-CR; 06-14-00179-CR; 06-14-00180-
CR; 06-14-00181-CR
STEVEN R. MIEARS
State Bar of Texas No.: 14025600
October 27, 2015 211 North Main
Bonham, Texas 75418
Tel: 903-640-4963
Fax: 903-640-4964
Email: SteveMiears@msn.com
ORAL ARGUMENT IS REQUESTED
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Identity of Parties and Counsel
Under Rule 68.4(a), Rules of Appellate Procedure, the following is a
complete list of the names and addresses of all parties to the trial court’s final
judgments and their counsel in the trial court, and appellate counsel, so the
members of the court may at once determine whether they are disqualified to
serve or should recuse themselves from participating in the decision of the cases
and so the Clerk of the Court may properly notify the parties to the trial court’s
final judgments or their counsel of the judgments and all orders of the Court of
Criminal Appeals.
Trial Judge: THE HONORABLE JUDGE LAURINE BLAKE, 336TH JUDICIAL
DISTRICT COURT
Appellant .................................... WILLIAM JAMES AKIN
TDC# 01955082
11950 FM 998
Dalhart, TX 79022
Steven R. Miears (Counsel on Appeal)
SBOT# 14025600
211 North Main
POB 736
Bonham, Texas 75418
903 640 4963 fax: 903 640 4964
SteveMiears@msn.com
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Donald Hoover (Counsel at Trial)
SBOT #24053049
101 East Sam Rayburn Drive
Bonham, Texas 75418
THE STATE OF TEXAS Richard E. Glaser
SBOT# 08000000
Criminal District Attorney
101 East Sam Rayburn Drive
Bonham, Texas 75418
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TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL...................................................2
TABLE OF CONTENTS .................................................................................... ...... 4
INDEX OF AUTHORITIES........................................................................................ 5
STATEMENT REGARDING ORAL ARGUMENT....................................................7
STATEMENT OF THE CASE .....................................................................................7
STATEMENT OF PROCEDURAL HISTORY...............................................................7
GROUNDS FOR REVIEW.. .......................................................................................... .8
1. The Sixth Court of Appeals failed to apply the correct standard of review on
appeal to measure harm caused by the admission of irrelevant evidence.
2. Should the analysis for harm from the admission of irrelevant evidence be similar
as that used under Rule 403 and Montgomery to ascertain harm from the admission
of relevant evidence?
ARGUMENT..................................................................................................................8
PRAYER FOR RELIEF.........................................................................................17
APPENDIX (Copies of Opinions from Court of Appeals)
CERTIFICATE OF SERVICE.......... ..................................................................................18
CERTIFICATE OF WORD COUNT............................................................................... 20
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INDEX OF AUTHORITIES
Constitutions
14th amendment to the U.S. Constitution.
Rules
Tex. R. App. P. 44.2(b). p.9
Tex. R. App. P. 47. p.10
Cases
Akin v. State of Texas, No. 06-14-00178-CR (Tex. App. Texarkana – 2015). p.9
Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). pp. 10,11
Erazo v. State, 144 S.W.3d 487, 2004 Tex. Crim. App. LEXIS 1007 (Tex. Crim. App.
2004). p.17
Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). p.14
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).
pp. 13,14
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). p.11
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh'g).
pp.8,15,16
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). pp. 9,11,15
Murphy v. State, 12-07-00368-CR, 2009 WL 2450990, at *2 (Tex. App.—Tyler Aug.
12, 2009, pet. ref’d) (mem. op., not designated for publication). pp. 9, 10
O'Neal v. McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947
(1995). p.14
Russell v. State, 113 S.W.3d 530, 549-550 (Tex. App. Fort Worth 2003). p.15
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Thrift v. State, 134 S.W.3d 475 (Tex. App. Waco 2004). p.15
Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005). p.15
Warr v. State, 418 S.W.3d 617, 2009 Tex. App. LEXIS 2538 (Tex. App. Texarkana
2009). p.10
Webb v. State, 36 S.W.3d 164, 182-83 (Tex. App.--Houston [14th Dist.] 2000, pet.
ref'd) (op. on reh'g). p.14
Secondary Sources
Janet L. Hoffman, Litigation Journal SPRING 2011 • Vol. 30 No. 1. p.12
W. Mark Lanier, TECHNOLOGY: PICTURE THIS: PRACTICAL POWERPOINT
TIPS FOR LAWYERS, 69 Tex. B. J. 610, 2006. p.12
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested.
STATEMENT OF THE CASE
This petition relates to four cases joined for trial and appeal. Petitioner was
convicted by a jury of sexual assault of a child and three counts of indecency with a
child by sexual contact. He was sentenced to twenty years imprisonment. There are
four opinions from the Court of Appeals. The memorandum opinion in the sexual
assault case, 06-14-00178-CR, discusses the issue common to all cases which is the
subject of this Petition. This Petition relates to all cases as the issue is the same.
Appellant has filed a motion with the Sixth Court of Appeals requesting that the
opinion be changed and designated as published. The Court has not ruled on that
motion.
STATEMENT OF PROCEDURAL HISTORY
The opinions of the Court of Appeals were handed down on September 16,
2015. Appellant’s motion for rehearing was overruled on October 6, 2015.
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GROUNDS FOR REVIEW
1. The Sixth Court of Appeals failed to apply the correct standard of review on appeal
to measure harm caused by the admission of irrelevant evidence.
2. Should the analysis for harm from the admission of irrelevant evidence be similar as
that used under Rule 403 and Montgomery to ascertain harm from the admission of
relevant evidence?
Summary of the Petition
The Sixth Court of Appeals failed to apply the correct standard of review on
appeal to measure the harm caused to the Appellant by the admission of graphic
photos held to be irrelevant evidence. Specifically, the Court fails to apply
precedent from the U.S. Supreme Court and this Court to ascertain harm from the
admission of irrelevant evidence. In failing to review the potential for harm from
irrelevant evidence by the Montgomery factors, the Court lowers the threshold for
a harm analysis to below that for review for harm from relevant evidence. The
Court of Appeals errs in finding there was no harm to Appellant from the exhibits.
ARGUMENT
The Court of Appeals correctly concludes that the trial court erred in admitting
into evidence several pornographic images found on a computer. These exhibits are
attached to this electronically filed PDR as “attachments.” As the opinion states, “Since
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the record does not show a nexus between Akin’s use of adult pornography and either
the victim or the nature of the offense, we find that the exhibits were not relevant
evidence tending to show Akin’s intent to arouse or gratify his sexual desire by
sexually assaulting or sexually contacting children. Admitting State’s Exhibits 8, 9, 10,
and 11, over Akin’s objections, was error.” Akin v. State of Texas, No. 06-14-00178-
CR (Tex. App. Texarkana – 2015) p. 13. As non-constitutional error the Court
reviewed this error for harm under Tex. R. App. P. 44.2(b). Unless the error affects a
substantial right of the defendant, it must be disregarded.
To determine whether a substantial right was affected the Court cited Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000), and employed the following
standard: “We should not overturn the conviction for non-constitutional error if, after
examining the whole record, we have ‘fair assurance that the error did not influence the
jury, or had but a slight effect.” Akin, id., at 14. An evidentiary doctrine heavily relied
upon by the Court in its analysis of the record for harm was that: “Improper admission
of evidence is not reversible error if other unchallenged evidence proves the same
facts.” Akin, id., at 14.To support this as a statement of law the Court cites as follows:
“Murphy v. State, 12-07-00368-CR, 2009 WL 2450990, at *2 (Tex. App.—Tyler Aug.
12, 2009, pet. ref’d) (mem. op., not designated for publication); Warr, 418 S.W.3d at
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621 (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986)).” The
complete cite is Warr v. State, 418 S.W.3d 617, 2009 Tex. App. LEXIS 2538 (Tex.
App. Texarkana 2009). Akin, id., at 14. The Court then finds the error from the
admission of the photographic images harmless because, “Essentially the same facts
were shown by the testimony of Akin’s ex-wife, Misti. She testified that, in the last
years of their marriage, Akin was watching aggressive and vulgar pornography,
including wife-raping video recordings, forced sex, and simulated rape.” Akin, id. at
14. The Court reasons that since testimony from witnesses described Appellant’s use of
pornography then the admission of actual pornographic images was not influential. In
its methodology and conclusion the Court errs.
The Court’s reliance upon Murphy is questionable. Murphy was a non-published
memorandum opinion. In criminal cases, under Tex. R. App. P. Rule 47, “Opinions
and memorandum opinions not designated for publication by the court of appeals
under these or prior rules have no precedential value.”
Murphy differs because it concerned the admission of irrelevant hearsay testimony, not
visual images. The Court’s reliance upon Warr is interesting. In Warr, the Court held
that the erroneous admission into evidence of actual sex toys into evidence was
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harmful to the Appellant when unobjected to testimony had described the same
evidence.
But for the general proposition that “Inadmissible evidence can be
rendered harmless if other evidence at trial is admitted without objection and it proves
the same fact that the inadmissible evidence sought to prove,” the Court cites Anderson
v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). This evidentiary doctrine relied
upon by the Court may also be known at times as curative admissibility, and
commonly expressed as “opening the door.” (For a discussion of the confusing use of
terms see Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (explaining
rule of harmless error, waiver, and common-law doctrine of curative admissibility).
Under some version of that doctrine, not involving rebuttal, the Appellant was held to
have waived his right to complain on appeal of harm by not challenging similar
evidence offered by the State. By not objecting to testimony which described what was
depicted in the exhibits the Appellant is held to have waived his complaint about their
unfairness.
In finding no harm the Court used the Morales standard for measuring harm of
whether there is a “fair assurance that the error did not influence the jury, or had but a
slight effect.” The Court of Appeals errs in finding these images had little or no
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influence on the jury’s verdict. The Court underestimated the power of these visual
images to upset the stability of the orderly consideration of relevant evidence.
Modern trial advocacy teaches lawyers to use photographs to embed a point
within a juror’s mind – indelibly, so they recall it during deliberations. They are taught
that the brain retains information differently according to its type, especially a narrative
coupled with graphic exhibits. The advice to "use a picture because it’s worth a
thousand words" is the law school mantra for how to triumph at trial.
Studies of the brain, and research on learning, show that people retain
information best when all their senses are engaged. The brain is most active when
stimulated in various ways. Jurors are persuaded when a case is presented in a
multimedia format. Joining graphics with a narrative enhances the impact. See Janet L.
Hoffman, Litigation Journal SPRING 2011 • Vol. 30 No. 1. Lawyers have been so
instructed to use visuals in trial to where they are expected by jurors. Who goes to trial
without a PowerPoint anymore? The days of trying a case with a legal pad and an
indictment are gone. Court rooms across the State have been modified to accommodate
video monitors and projection devices. As attorney Mark Lanier wrote ten years ago,
“Pictures are attention-getters and attention-keepers. Jurors' brains and emotions react
to pictures and a lawyer's words subconsciously.” W. Mark Lanier, TECHNOLOGY:
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PICTURE THIS: PRACTICAL POWERPOINT TIPS FOR LAWYERS, 69 Tex. B. J.
610, 2006.
The Court of Appeals failed to acknowledge the power these photos had to
destabilize the integrity of the trial process. The coupling of these images of gang
sodomy with the testimony that, “Akin was watching aggressive and vulgar
pornography, including wife-raping video recordings, forced sex, and simulated rape . .
.” caused impression associated with Appellant to be frozen in their minds. How this
impression affected their decision making is the question.
The Court of Appeals acknowledged that none of these pictures had any
relevance to the conduct Appellant was accused of committing. But the Court
concluded that the images had little or no impact because the jurors had heard
testimony from witnesses that described the subject of the photos. Instead of
recognizing the danger of unfair prejudice presented from visual images, the Court’s
opinion minimizes their impact precisely because they were joined with narrative
testimony. Akin v. State, No. 06-14-00178-CR, p. 14. In truth, the harm was a
consequence of the photos being joined with a storyline.
Nor does the Court’s opinion acknowledge that Texas law employs the
Kotteakos standard to review non-constitutional error for harm set forth by the U.S.
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Supreme Court. See Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).
In Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557
(1946) the U.S. Supreme Court explained: “If one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error, it is impossible to conclude
that substantial rights were not affected. The inquiry cannot be merely whether there
was enough to support the result, apart from the phase affected by the error. It is rather,
even so, whether the error itself had substantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.” Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248.
“Grave doubts" means the matter is so evenly balanced that one feels in virtual
equipoise as to the harmlessness of the error. Webb v. State, 36 S.W.3d 164, 182-83
(Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (op. on reh'g) (citing O'Neal v.
McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995)). If the
reviewing court is unsure whether the error affected the outcome, the court should treat
the error as harmful, and as having a substantial and injurious effect or influence in
determining the jury's verdict.
The issue is whether there is uncertainty whether these photographs may have
influenced the jury's verdict. By admitting the photographs, the jury was sent the
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message they were important in determining Appellant’s guilt or innocence. The
integrity of the process leading to the conviction should be paramount. The trial
court’s error in sanctioning these images was of a magnitude it disrupted the orderly
evaluation of the evidence. It is the effect of this error, not any of the other evidence,
which should have dictated the appellate judgment. See Russell v. State, 113 S.W.3d
530, 549-550 (Tex. App. Fort Worth 2003).
This case is factually akin to opinion at the Court of Appeals in Thrift v. State,
134 S.W.3d 475 (Tex. App. Waco 2004). Subsequently, in Thrift v. State, 176 S.W.3d
221 (Tex. Crim. App. 2005) this Court affirmed Thrift’s conviction but on other
grounds. In the original Thrift opinion, the Court of Appeals appropriately concluded
on similar facts that “we do not know that it was the credibility-weighing of the
witnesses that led to the verdict, rather than that the photographs ‘tipped the scales’ in a
close case.” The result here should be the same. This was a case of “he said – she said.”
No eyewitnesses. No forensic evidence. No confession. But there were horrible,
irrelevant photos that the jury should never have seen. These images, magnified by
testimony, could “tip the scales” against the Appellant.
The Morales standard lacks guidance to Appellate courts to assess harm from
introducing irrelevant evidence. When relevant evidence is admitted under Rule 403
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this Court has established that the Montgomery factors (probative value, irrational
impression, time to develop, and need for the evidence) apply to the review for harm.
See Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh'g).
Rule 403 applies to judge whether otherwise relevant evidence should be excluded
because its use would be unfair. Here, the pictures were rightly found to be irrelevant,
and of zero probative value. There was no legal basis for their admissibility. Surely the
analysis for harm from the admission of irrelevant evidence should have an objective
threshold analysis for harm equal to that of relevant evidence.
The application of the Montgomery factors to these images would cause a
finding of harm. A consideration of the potential of these photographs “to impress the
jury in some irrational, yet indelible, way” is especially appropriate. The Court of
Appeals does not address this as a concern because this Court has not directed it to do
so. This Court should grant review to clarify what factors should be considered for
determining harm from the erroneous introduction of irrelevant evidence.
When evidence has no probative value, there is obviously no requirement that its
value be “substantially outweighed” by its prejudicial affect at trial or on appeal. See
Rule 403. Under this balancing test the burden is on the party resisting the evidence to
show that using the evidence was unfair. With irrelevant evidence, improperly
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admitted, the burden should be on the party who gained by the evidence to convince on
appeal that the evidence had no influence. Without the use of objective criteria like the
Montgomery factors the review for harm from the irrelevant evidence becomes too
subjective for due process as guaranteed by the 14th amendment to the U.S.
Constitution.
This Court, however, has not hesitated to correct the erroneous admission of a
relevant photograph where its probative value was substantially outweighed by its
potential for unfair prejudice. See Erazo v. State, 144 S.W.3d 487, 2004 Tex. Crim.
App. LEXIS 1007 (Tex. Crim. App. 2004). In failing to recognize the risk of
unfairness from these images the Court of Appeals errs. Petitioner asks the Court to
look at these photographs. The jury did. While a picture may be worth a thousand
words, in this case they were worth a tome.
PRAYER FOR RELIEF
This Court should grant review. After review, the Court should remand the
case back to the trial court for a new trial.
APPENDIX
Copies of the four opinions of the Court of Appeals are attached.
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RESPECTFULLY SUMITTED,
____________________
Steven R. Miears
211 North Main
Bonham, Texas 75418
Stevemiears@msn.com
Tel. 903-640-4963
Fax: 903-640-4964
State Bar Card No. 14025600
Attorney for Appellant
Certificate of Service
This is to certify that a true and correct copy of the above and foregoing
Appellant’s Brief on Appeal was hand-delivered to Richard E. Glaser, Fannin
County Criminal District Attorney; 101 East Sam Rayburn Drive; Bonham, Texas
75418; on October 23, 2015; and to the State Prosecuting Attorney, LISA C.
McMINN, P.O. Box 13046, Capitol Station, Austin, Texas 78711, and that a copy
was mailed to the Appellant, William James Akin.
_________________________________
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Steven R. Miears
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CERTIFICATE OF WORD COUNT
Counsel for the Appellant certifies that the word count of this brief is less than 3,213 words
and within the limitations for length of PETITIONS FOR DISCRETIONARY REVIEW.
_________________________
Steven R. Miears
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00178-CR
WILLIAM JAMES AKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-13-24791
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In June 2013, toward the end of her family reunion at Bonham State Park, Grace1 became
concerned that her forty-year-old brother, William James Akin, might have acted inappropriately
toward fourteen-year-old Katie, one of the two teenaged daughters of Grace’s fiancé, Mark. It had
just been reported to Grace by Katie’s sixteen-year-old sister, Martha, that Akin had earlier
suggestively complimented, and lingered as he thoroughly eyed, the bikini-clad Martha outside
nearby restroom facilities. Still earlier that day, the bikini-clad Katie had spent some extended
time in close contact with Akin in the lake, as the rest of the reunion group was playing in the
water not far away. Exactly what that contact had consisted of had been screened by the water and
the distance from the main group of swimmers to Katie and Akin.
Though Katie initially denied any Akin misdeeds, she soon admitted to Grace that Akin
had touched her sexually. That ultimately led to Akin’s conviction on multiple charges. In the
case appealed here,2 Akin was convicted of sexual assault of a child3 and sentenced to twenty
years’ imprisonment.
1
Grace, along with everyone else in either family group, except the defendant, William James Akin, is given a
pseudonym in this opinion to protect the minors’ involved. See TEX. R. APP. P. 9.8(b)(2), 9.10(a)(3). Those so named
include Mark; Mark’s daughters; Martha and Katie; Mark’s fiancée, Grace; Akin’s mother, Molly; Akin’s cousin,
Melinda; and the wife of another Akin cousin, Fiona.
2
In cases arising from the same incident, Akin was also convicted of three counts of indecency with a child by sexual
contact, convictions that have also been appealed to this Court and addressed in opinions released the same date as
this opinion, in our case numbers, 06-14-00179-CR, 06-14-00180-CR, and 06-14-00181-CR.
3
See TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).
2
In a consolidated brief addressing all four cases, Akin contends that the trial court erred in
admitting four photographs depicting pornography-related screenshots from his laptop and in
granting the State’s challenge of a juror for cause. We find that (1) no harm came from the error
in admitting the photographs regarding Akin’s use of pornography and (2) the trial court was
within its discretion in dismissing a juror for cause at the State’s request. Therefore, we affirm the
judgment of the trial court.
(1) No Harm Came from the Error in Admitting the Photographs Regarding Akin’s Use of
Pornography
Akin claims harmful error in the admission of four photographs of screen displays on his
laptop computer, two of those describing various pornographic sites appearing in internet search
histories and two displaying pornographic websites that had been actively running when his
computer was seized. Although the admission of these photographs was error, the error was
harmless.
Before we address the admission of these four photographs, we review the context of the
offense and trial.
At the consolidated trial, Katie gave detailed testimony about the incident in question. At
three feet, ten inches tall, Katie is unusually short for her age.4 On Saturday, the family reunion
revelers spent most of the day in the lake. Since most of the activity took place in water that was
around five feet deep, Katie rode on other people’s backs. Akin was the last person to carry her
on his back.
4
Katie suffers from pseudoachondroplasia, a genetic bone growth disorder.
3
While Katie rode on Akin’s back, her feet fell asleep. Akin began rubbing them, but then
worked his way up Katie’s legs. Even though she told him, “[T]his is really weird,” he continued
to rub her thighs, her butt, and then under her swimsuit, and then put his finger in her vagina. Katie
testified she was scared and wanted to cry out to the others that were in the water, but she froze.
Akin moved his fingers up and down for a few minutes, then moved her to his side. She said he
then put his hand underneath the top of her swimsuit and grabbed her breast. After that, he
removed his hand and again put his hand inside the bottom of her swimsuit and put his finger back
into her vagina. She testified that he then pulled his swimsuit down, took out his penis, and
grabbed her leg to make her leg and foot rub against it. Then he grabbed her hand and made her
hand rub his penis. Katie testified that this did not last long before Akin said, “We’re going to get
caught. We need to stop.” He then pulled up his swimsuit, put her on his back and again put his
finger in her vagina. He asked her if she wanted to go to the bathroom to “finish this,” but she did
not respond. Akin told her that she could not say anything about what had happened and said, “I
don’t want to go to jail for 20 years over this.” She said Akin finally stopped when his mother,
Molly, got in the water and walked toward them to take a picture.
Melinda, one of Akin’s cousins, also testified for the State. She testified that she had seen
Katie on Akin’s back in the lake at the reunion. At the time, they were on one side of a large float,
off by themselves, while the rest of the people were on the other side. She said that Katie was
cheek-to-cheek with Akin and his arms and hands were up high, behind his back. She testified
that because of the positioning of his arms and hands, she thought he might be “fingering” her,
that is, that his finger was inside her vagina. At the time, she dismissed her suspicion and said
4
nothing, because she gave him the benefit of the doubt and could not believe it could be happening
with all the people around. After thinking more about it, she told her sister the next day that she
believed Akin had been fingering Katie out in the lake. Fiona, who is married to Akin’s cousin,
Gary, testified that she had seen Akin holding Katie like a koala bear in the lake and that it made
her uncomfortable because they were so close and he was not her father.
Over Akin’s objections, his ex-wife,5 Misti, testified regarding Akin’s use of pornography
and desire for sex during their marriage.6 She testified that, during the fourteen years of their
marriage, Akin wanted to have sex almost all the time, requesting it multiple times a day.7 She
also testified about Akin’s use of pornography. Misti testified that, early in their marriage, Akin
watched “normal” pornography, but in the last years of their marriage, he was watching more
aggressive pornography. She described these as wife-raping videos, forced sex, and simulated
rape. According to Misti, over the last couple of years of their marriage, Akin viewed pornography
three to five times a day and would masturbate as he watched it. He viewed pornography on his
computer, on DVDs, and in magazines. Misti testified that, although Akin would use emotional
manipulation to convince her to have sex with him, he never physically forced her. On cross-
5
Misti was married to Akin at the time of the offense, but divorced him in September 2013.
6
Although Akin timely objected to Misti’s testimony regarding his desire for sex and use of pornography, he does not
bring any error in this Court regarding this testimony.
7
Akin requested, and the trial court gave, a limiting instruction that limited the jury’s consideration of testimony
regarding Akin’s desire for sex only for the purposes of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident, and only if it believed the testimony beyond a reasonable doubt. See TEX.
R. EVID. 404(b). The Texas Rules of Evidence were amended by orders of the Texas Supreme Court and Court of
Criminal Appeals, effective April 1, 2015. Those Rules quoted in this opinion are the Rules in effect at the time of
the trial of this case. To facilitate access to the text of the Rules in effect at the time of trial, we note that those Rules
first appeared in volume sixty of the Texas Bar Journal, beginning on page 1129. See 60 Tex. B.J. 1129 (1997).
5
examination, Misti testified that, the night before the Saturday contact, Katie had jumped onto
Akin’s lap as they sat around the campfire.
The State also offered the testimony of Eddie L. Wagoner, a licensed professional
counselor, licensed clinical social worker, and licensed sex-offender-treatment provider. Wagoner
testified that he has worked for almost forty years in the area of sexual offenses against children
and has been a registered sex-offender-treatment provider for approximately twenty-five years.
He testified regarding the different types of offenders that abuse children: the pedophile, who has
a predisposition to be sexually attracted to children, and the “regressed” offenders, who are
relatively normal in most aspects of their lives. He explained that regressed offenders develop a
diminished thinking capability that allows them to become focused on using a child for sexual
gratification. He also explained how pornography distorts a person’s thinking by objectifying
women and children so that they are looked on as sexual objects, rather than as people. He pointed
out, however, that the use of pornography was only one factor in the distortion of thinking.
Wagoner explained that the regressed thinking process involves overcoming the accepted social
norms of behavior by first entertaining the possibility of engaging in inappropriate behavior, such
as sex with a child, then creating an atmosphere in one’s mind where it is permissible to engage in
the behavior. If a person’s thinking has regressed this far, then he may commit a sexual offense
when the opportunity arises.
Wagoner agreed that such a person might view a teenage girl at a camp out who sat in his
lap as someone who was interested in him sexually and then look for an opportunity. Wagoner
6
also agreed that this type of offender might commit the offense in a spot visible to other people if
he could do it with an element of secrecy.
On cross-examination, Wagoner testified that he was testifying only to general
characteristics of offenders and not expressing an opinion that an offense had been committed in
this case. He also stated that he did not know anything about this particular case. He testified that
neither viewing pornography nor having a strong sexual desire necessarily leads to commission of
a sexual offense.
The State offered the testimony of Grace, Martha, Mark, Katie’s mother, Akin’s children
and stepson, a clinical counselor, a licensed sex-offender-treatment provider, and the investigating
officer. A forensic psychologist, his mother, an aunt, and a cousin testified on Akin’s behalf. Akin
chose not to testify. Since Akin does not challenge the legal sufficiency of the evidence supporting
his conviction, we will not discuss all of the other evidence presented in detail. Rather, we will
concentrate on the evidence relevant to the analysis of Akin’s challenge concerning the admission
of the four photographs.
Sergeant Jacob Barker of the Fannin County Sheriff’s Department investigated the charges
against Akin. Barker testified that, on the day Akin was arrested but after his arrest, he contacted
Akin’s then-wife, Misti, and obtained her permission to pick up and search the family’s laptop
computer. After obtaining the laptop and returning to his office, Barker opened the laptop.
Without objection, he testified that, on opening the laptop, he observed that there were two
pornographic websites actively playing and that he photographed both of these web pages, thus
producing two of the four challenged photographs. Barker then checked the search history on the
7
laptop for the two previous days and photographed the two pages that were displayed, thus
producing the other two challenged photographs. He testified that he then scanned the hard drive
of the laptop with an ADF triage key, which he explained contains a program designed to scan the
computer for child exploitation material. Barker testified, again without objection, that after
scanning the laptop for five hours, over 50,000 pornographic images, videos, and websites were
found on the computer. He stated that all of the pornographic material recovered from the laptop
involved adults and that he was not able to identify any child pornography.
The State offered the two photographs of the search history as State’s Exhibits 8 and 9, and
the photographs of the two pornographic websites that were actively playing as State’s Exhibits
10 and 11. Akin immediately objected under Rules 401, 402, 403, and 404(a) of the Texas Rules
of Evidence.8 He specifically objected that the photographs were not relevant, that they were
unfairly prejudicial, and that they violated Rule 404(a). The State responded that they were
relevant “to help the State prove the defendant’s intent to arouse or gratify the sexual desire and
the increase -- the increased nature of his sexual desire, and the -- the force in which he’s using --
that he’s enjoying, employing the fantasy.”
Akin argues that these photographs of pornographic websites and internet search histories
are not relevant since there is no evidence that he viewed child pornography or that he used
pornography in perpetrating the offense against the child.9 He also argues that the exhibits should
8
See TEX. R. EVID. 401, 402, 403 & 404(a).
9
Akin also argues that the exhibits were not relevant because there is no evidence that he is the person who viewed
the pornographic websites or performed the internet searches indicated on the search histories. However, at trial, Akin
only generally objected that they were not relevant, were unfairly prejudicial, and violated Rule 404(a), which forbids
the admission of “[e]vidence of a person’s character or character trait . . . for the purpose of proving action in
8
have been excluded as inadmissible character evidence under Rule 404(a). See TEX. R. EVID.
404(a). Finally, Akin argues that, if the exhibits are relevant, they should have been excluded
under the balancing test of Rule 403. See TEX. R. EVID. 403. The State argues that the exhibits
were relevant to show Akin’s intent to arouse or satisfy his sexual desire.10 It argues that the
websites and search histories shown in the exhibits were “relevant circumstantial evidence of
[Akin’s] sexual desire and, by extension, the actions by which he might gratify that sexual desire.”
Relevant evidence is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more or less probable than it would be without
the evidence.” TEX. R. EVID. 401. While relevant evidence is generally admissible, evidence that
“is not relevant is inadmissible.” TEX. R. EVID. 402. Further, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” TEX. R. EVID. 403.
conformity therewith on a particular occasion.” See TEX. R. EVID. 404(a). On appeal, the point of error “must
correspond or comport with the objection made at trial.” Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana
2005, pet. ref’d) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696,
700 (Tex. Crim. App. 1986)). If the record does not show a “timely request, objection or motion” that specifically
states the grounds for the ruling sought, then the issue is not preserved for appeal. TEX. R. APP. P. 33.1(a)(1)(A); see
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim.
App. 2009). If the objection at trial does not correspond with the issue on appeal, nothing is preserved for review.
Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Wright, 154 S.W.3d at 241. Since Akin failed to assert
these objections at trial, there is nothing preserved for our review.
10
The Texas Court of Criminal Appeals has recognized that the intent to arouse or gratify sexual desire is an implicit
element of aggravated sexual assault of a child. Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). “Intent
to arouse or gratify the sexual desire of any person” is also an explicit element of indecency with a child. TEX. PENAL
CODE ANN. § 21.11(c) (West 2011). For the purposes of this opinion, we assume, without deciding, that the intent to
arouse or gratify sexual desire is an implicit element of sexual assault of a child.
9
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); Saucedo v. State, 129
S.W.3d 116, 120 (Tex. Crim. App. 2004); Warr v. State, 418 S.W.3d 617, 619 (Tex. App.—
Texarkana 2009, no pet.). As long as the trial court’s ruling is within the zone of reasonable
disagreement, we will uphold its ruling. Martin, 173 S.W.3d at 467; Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g); Warr, 418 S.W.3d at 619.
While the evidence of pornography use may show the nature of Akin’s desires and what
actions he might take to fulfill those desires, it does not follow, as argued by the State, that this
evidence, standing alone, is relevant to any issue in this case. Generally, for evidence of
pornography use by the defendant to be admissible to show a defendant’s intent to arouse or satisfy
his sexual desire, there must be some evidence showing a nexus between the pornography and
either the victim or the nature of the offense committed. See, e.g., Sarabia v. State, 227 S.W.3d
320, 324 (Tex. App.—Fort Worth 2007, pet. ref’d) (admitting photographs of pornography
depicting activities with preteen boys similar in kind to those perpetrated on child victim). For
instance, in cases involving sexual offenses against a child, evidence of the defendant’s use of
child pornography is generally held to be relevant circumstantial evidence of the defendant’s intent
to arouse or gratify his sexual desire. See, e.g., Lewis v. State, 676 S.W.2d 136, 139 ( Tex. Crim.
App. 1984) (nude photographs of child victim in indecency case); Sarabia, 227 S.W.3d at 324
(photographs depicting activities with pre-teen boys in trial of aggravated sexual assault of child);
Darby v. State, 922 S.W.2d 614, 620 (Tex. App.—Fort Worth 1996, pet. ref’d) (magazine
containing sexually explicit photographs of young female posing with teddy bear corresponded to
10
offense in which defendant had child victim pose with teddy bear); Barto v. State, No. 13-13-
00384-CR, 2014 WL 895511, at *2, *4 (Tex. App.—Corpus Christi Mar. 6, 2014, pet. ref’d) (mem.
op., not designated for publication)11 (child pornography in continuous sexual abuse of child,
defendant had victims watch pornography during commission of offense). In such cases, a nexus
existed between the type of pornography used and either the victim or the nature of the offense.
Likewise, some nexus must exist to make evidence of the defendant’s use of adult
pornography relevant in cases involving sexual offenses against children. In Allen v. State, our
sister Court of Appeals held that a picture of a videotape cover containing adult pornography had
some probative value in a trial for sexual offenses against a child when the child victim testified
that the defendant “made her watch pornographic movies with him and would make her try to
engage in the same sexual acts portrayed in the movie.” Allen v. State, No. 01-10-00652-CR, 2012
WL 2106550, at *4–5 (Tex. App.—Houston [1st Dist.] June 7, 2012, pet. ref’d) (mem. op., not
designated for publication). Notably, this evidence was offered to corroborate the victim’s version
of the events, not to show the defendant’s intent to arouse or gratify his sexual desire. Id. at *3.
On the other hand, when the evidence does not show this nexus, evidence of adult
pornography has been held irrelevant. In Cox v. State, the defendant was convicted of two counts
of indecency with a child. Cox v. State, Nos. 13-00-184-CR & 13-00-185-CR, 2001 WL
34392825, at *1 (Tex. App.—Corpus Christi Aug. 9, 2001, no pet.). Over the defendant’s
objection, the trial court admitted a copy of an online sex magazine that contained a small article
11
Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
11
related to homosexuality on the internet, but no articles relating to sex with children or unnatural
interest in children. Id. at *5. The State argued that the magazine was offered to show intent,
motive, opportunity, and identity, and pointed to the testimony of the victim that the defendant
watched child pornography and masturbated in front of him. Id. The Court of Appeals held that
this testimony of the victim failed to show how the offered exhibit was relevant to show any of the
bases for which it was offered. Id.
Other than arguing that the exhibits are relevant to generally show Akin’s sexual desires
and what actions he might take to satisfy those desires, the State makes no argument, and points
to no evidence, that would show how these exhibits, all of which involve adult pornography, are
relevant to show Akin’s intent to satisfy his sexual desire either by sexually assaulting or sexually
contacting a child. The websites and search histories in question all involve pornography involving
adults. Barker testified that, of the 50,000 pornographic images, video recordings, and websites
found on Akin’s computer, all of the material involved adults. Also, although Akin’s use of
pornography over the past several years involved viewing violent and forced sex, none of it
concerned children. In addition, although there was testimony that Akin would masturbate while
watching the pornography, this was done in the privacy of his own home, not in front of children.
The State offered the testimony of Wagoner in an apparent attempt to establish a nexus between
the general use of pornography and sexual offenses against children. However, Wagoner did not
testify to any link between the use of pornography involving adults and sexual offenses against
children, either generally or in this case in particular. He testified that the effect of using
pornography tends to reinforce a regression in the thinking processes that allows a potential
12
offender to entertain the possibility of committing sexual offenses, but he did not express an
opinion on whether or not Akin’s use of pornography had such an effect on his thinking processes.
Further, although Akin’s wife testified regarding his sexual desire and use of violent and forced-
sex pornography, she testified that he never physically forced her to have sex. Finally, there is
nothing in the record to suggest that pornography was used in the commission of the offense.
“Evidence of extraneous sexual activity that simply proves certain propensities toward
sexual conduct in general is not admissible.” Warr, 418 S.W.3d at 621 (citing Boutwell v. State,
719 S.W.2d 164, 176–81 (Tex. Crim. App. 1985) (op. on reh’g)). Since the record does not show
a nexus between Akin’s use of adult pornography and either the victim or the nature of the offense,
we find that the exhibits were not relevant evidence tending to show Akin’s intent to arouse or
gratify his sexual desire by sexually assaulting or sexually contacting children. Admitting State’s
Exhibits 8, 9, 10, and 11, over Akin’s objections, was error.
Admitting evidence in violation of a Rule of Evidence is considered non-constitutional
error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). Unless it affects a substantial right of the defendant,
non-constitutional error must be disregarded. TEX. R. APP. P. 44.2(b); Warr, 418 S.W.3d at 621.
We should not overturn the conviction for non-constitutional error if, after examining the whole
record, we have “‘fair assurance that the error did not influence the jury, or had but a slight effect.’”
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998)).
13
In assessing whether the jury’s decision was adversely influenced by the error, we
“consider everything in the record, including any testimony or physical evidence admitted for the
jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged
error and how it might be considered in connection with other evidence in the case.” Baxter v.
State, 66 S.W.3d 494, 499 (Tex. Crim. App. 2001); Warr, 418 S.W.3d at 621. We may also
consider the jury instructions, the parties’ theories, and closing arguments, if material to the
appellant’s claim. Baxter, 66 S.W.3d at 499; Warr, 418 S.W.3d at 621. Whether the State
emphasized the erroneous evidence may also be a factor. Motilla v. State, 78 S.W.3d 352, 356
(Tex. Crim. App. 2002). Improper admission of evidence is not reversible error if other
unchallenged evidence proves the same facts. Murphy v. State, 12-07-00368-CR, 2009 WL
2450990, at *2 (Tex. App.—Tyler Aug. 12, 2009, pet. ref’d) (mem. op., not designated for
publication); Warr, 418 S.W.3d at 621 (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim.
App. 1986)).
The record in this case demonstrates that the error is harmless. First, the exhibits
erroneously admitted consisted of two pages reflecting internet search history and photographs of
two pornographic websites. Essentially the same facts were shown by the testimony of Akin’s ex-
wife, Misti. She testified that, in the last years of their marriage, Akin was watching aggressive
and vulgar pornography, including wife-raping video recordings, forced sex, and simulated rape.
Misti also testified that Akin viewed pornography many times every day. Barker testified that
over 50,000 pornographic images, videos, and websites were recovered from Akin’s laptop. None
of this testimony is challenged on appeal.
14
In addition, Katie gave a clear account of the circumstances surrounding the sexual assault
and sexual contact, and two of Akin’s cousins confirmed critical parts of Katie’s testimony.
Testimony from Melinda and Fiona confirmed the close and suspicious behavior of Akin and
Katie, consistent with Katie’s testimony. Grace confirmed Katie’s outcry statement. Thus, there
is substantial testimony from both the victim and Akin’s family members supporting the
conviction.
Further, in its initial final argument, the State mentioned the internet search history only
once. On rebuttal, the State, in response to Akin’s argument, told the jury that the pornography
was introduced only to show Akin’s sexual desire and intent. Combined, these references
consisted of only two paragraphs out of twelve and one-half pages of the State’s argument in the
transcript. The majority of its argument focused on Katie’s testimony regarding the assault, the
confirming testimony of Akin’s cousin and sister, and the testimony of Akin’s ex-wife.
Considering the unchallenged testimony previously discussed and the evidence supporting
the conviction, and after reviewing the entire record, we have a fair assurance that the improperly
admitted evidence did not influence the jury, or would have had only a slight influence on the jury.
We overrule this point of error.
(2) The Trial Court Was Within Its Discretion in Dismissing a Juror for Cause at the
State’s Request
Akin also claims the trial court reversibly erred in granting the State’s for-cause challenge
of venireperson Horner. Akin argues that the State failed to establish that Horner could not render
a guilty verdict based on the testimony of one witness whom he believed beyond a reasonable
doubt and whose testimony proved every element of the alleged offense beyond a reasonable
15
doubt.12 The State argues that Akin failed to preserve any error and also waived any error.
Alternatively, the State argues that the trial court did not abuse its discretion in granting its
challenge for cause. We agree that the trial court remained within its discretion in sustaining the
challenge to the juror.
(a) Error Was Preserved
“Preservation of error is a systemic requirement on appeal. If an issue has not been
preserved for appeal[,] . . . [the appellate court] . . . should [not] address the merits of that issue.”
Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citations omitted). Under
Rule 33.1(a) of the Texas Rules of Appellate Procedure, an issue is not preserved on appeal unless
the record shows that it was presented to the trial court “by a timely request, objection or motion”
that “stated the grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
Under this Rule, “a party need not state his objection with specificity in order to preserve error so
long as the record otherwise makes it clear that both the trial court and the opposing party
understood the legal basis.” Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013). Also,
12
Akin also argues that the trial court’s error in sustaining the State’s challenge for cause violated his right to a fair
and impartial jury and to due process. See U.S. CONST. amend. VI, XIV; TEX. CONST. art. I, § 10. As such, he urges
us to apply a constitutional harm analysis, which he candidly acknowledges is contrary to established precedent of the
Texas Court of Criminal Appeals. See Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (erroneous
granting of State’s challenge for cause does not, except in few limited instances, violate defendant’s rights to due
process and to impartial jury guaranteed by Sixth and Fourteenth Amendments to United States Constitution and by
Article I, Section 10 of Texas Constitution). Since we find that the trial court did not abuse its discretion in granting
the challenge for cause, we need not address this argument.
16
an issue on appeal that does not comport with the objection made at trial presents nothing for
appellate review. Ibarra, 11 S.W.3d at 197; Wright, 154 S.W.3d at 241.
The State contends that Akin’s objection to the challenge for cause was not sufficiently
specific to inform the trial court and the State of the basis of his objection and why he thought he
was entitled to the requested ruling. To the contrary, the basis of Akin’s objection to the State’s
challenge was apparent from the context. Since the State’s voir dire of Horner is relevant to all
facets of this point of error, we will set forth the relevant portions.
After explaining to the veniremembers its burden of proof and its entitlement to a
conviction on proof of the defendant’s guilt beyond a reasonable doubt with only one witness, the
State asked:
. . . . So I’m going to ask each and every one of you, would you refuse to
convict on the testimony of only one witness even if that witness convinces you of
the defendant’s guilt beyond a reasonable doubt? Okay. So, the question’s not
could one witness ever get you to beyond a reasonable doubt. The question is, if
one witness got you to beyond a reasonable doubt, would you refuse to convict?
What do you think, Mr. Horner, would you refuse or would you convict?
VENIREPERSON [Horner]: Depending on what the total facts are in the
case.
[The State]: Okay . . . in the question, the total facts are that that one witness
convinced you of the defendant’s guilt. So, if that one witness convinced you of
the defendant’s guilt, would you nevertheless still refuse to convict merely because
the State put only one witness on the stand?
[Horner]: It would be hard.
[The State]: It would be hard. Okay.
....
17
[The State]: . . . . So, the State puts on its one witness and that one witness
convinces you that the defendant is guilty beyond a reasonable doubt. Okay? So,
the State’s met its burden. Right?
[Horner]: Okay.
[The State]: So, the question is, if the State meets its burden with just one
witness, would you still refuse to convict based on the fact that the State only
presents one witness?
[Horner]: I still think it goes back to that one witness. Do you trust that
one witness.
[The State]: Well, and that’s what the question is saying, is that you trust
them. So, if you believed them, would you convict or refuse to convict?
[Horner]: It would be hard.
....
[The State]: . . . . I need you to come back to this question, okay? So, I put
my one witness on, and that one witness proves my case to you. Okay? So, the
case is proven.
THE COURT: And, Mr. Moss, if I could interject. This is a hypothetical.
He’s not talking about this case. It’s just a hypothetical situation. Okay? You may
proceed.
[The State]: Thank you, Judge. And so, I put my one witness on and my
one witness convinces you beyond a reasonable doubt, it proves my case. So, if I
prove my case beyond a reasonable doubt, I’m entitled to a conviction. Right?
[Horner]: Right.
[The State]: Right? So, would you convict or would you refuse to convict
based on the fact that I only put on one witness?
[Horner]: I guess it would be how I felt.
[The State]: Okay.
18
[Horner]: If I could remove that there was any kind of doubt in my mind
--
[The State]: Well, and that’s --
[Horner]: Whether it’s one witness or 10.
[The State]: Sure, sure. But the question I’m saying is that -- that -- we’ve
reached that point. Okay? The question is giving you the answer. The question
says, you’ve made up your mind and you think the defendant committed the
offense. Okay. So, if you thought the defendant committed the offense, would you
convict him or would you refuse to?
[Horner]: If I totally think that he committed it, I can vote that he -- go by
the law of his guilt.
[The State]: You would find him guilty. Now, if I achieve that in your
mind with just one witness, would that -- would one witness change the calculation
or would it be the same?
[Horner]: I think it could change. It’s got to be the total package.
[The State]: Okay. So --
[Horner]: You know, there’s more involved than just one witness.
[The State]: Sure. Well, not -- not in this scenario. Not in this alternative.
[Horner]: I don’t like the scenario, then.
....
[The State]: So, it sounds to me that you’re saying that, even if one witness
convinced you beyond a reasonable doubt, you might not be able to convict.
[Horner]: Depends on the rest of the information.
[The State]: Okay. All of the information in the trial is the one witness.
[Horner]: One witness.
19
[The State]: That’s it. That’s all of the information in the trial in this
hypothetical scenario. There’s nothing else. And that one witness convinces you
of the defendant’s guilt, so I’ve proven my case to you. Right? Would you refuse
to convict or would you convict after I’ve proven my case to you?
[Horner]: If we got to that point, I would have to make that decision.
[The State]: Well, sir, are you refusing to answer this question?
[Horner]: Yeah.
[The State]: Why would you refuse to answer this question?
[Horner]: No, I just -- I just -- I’m just having a hard time with one person
totally changing somebody’s life.
[The State]: Sure. And that’s -- that’s why we address this issue and that’s
why we’re testing the limits of the law.
[Horner]: Yeah.
[The State]: That’s why I bring it up. So, what do you think? . . . .
[Horner]: I’d have a hard time.
[The State]: So, you would refuse to convict.
[Horner]: Yeah.
The State then moved to strike Horner from the jury panel, and Akin attempted to rehabilitate him:
[Akin’s Counsel]: Sir, so, I mean, Mr. Moss told you that that one witness
convinced you. . . . Now, if the one witness did not convince you, obviously you
wouldn’t convict. Is that right?
[Horner]: Yeah, I guess. Apparently I didn’t understand what the one
witness said, so I don’t know.
[Akin’s Counsel]: Well, that’s fine. You would -- you would -- if -- if you
learned as a juror in a case that there was only one witness, before you heard that
one witness testify, would you say, Hey, there’s only one witness, I couldn’t
convict, or would you wait to listen to what that witness has to say?
20
[Horner]: Well, I can’t say that because I’ve never been in that situation.
[Akin’s Counsel]: I’m sorry?
[Horner]: I couldn’t ever say that because I haven’t been in that situation.
[Akin’s Counsel]: Okay. I understand you haven’t been in that situation.
What we’re trying to do is see if you can follow that law that you would -- you
would listen and consider what that witness says.
[Horner]: I would listen, yes. I’m not going to just on one witness turn off
my hearing aid.
[Akin’s Counsel]: But -- so, you would still -- you wouldn’t automatically
acquit because . . . there’s only one witness?
[Horner]: I wouldn’t be a very good juror if I didn’t listen to every word
said. It’s not fair to either side.
[Akin’s Counsel]: So, you would still be able to listen and consider and
make your judgment based on what that witness told you. Correct?
[Horner: Yeah.
[Akin’s Counsel]: Okay. All right. Your Honor, I’d object. He said he
could listen and consider what the one witness told him.
THE COURT: I’m going to sustain the challenge.
Although the State did not specifically state the basis of its challenge to Horner’s
qualifications to sit as a juror, the context of the challenge shows, and the parties agree, that the
challenge is based on Articles 35.16(b)(3) and 38.07(b)(1) of the Texas Code of Criminal
Procedure. The former provides that the State may challenge a juror for cause if “he has a bias or
prejudice against any phase of the law on which the State is entitled to rely for conviction or
punishment.” TEX. CODE CRIM. PROC. ANN. art. 35.16(b)(3) (West 2006). Under the latter, the
21
uncorroborated testimony of a victim under seventeen years of age at the time of an offense is
sufficient to support a conviction for, inter alia, sexual assault or indecency with a child. See TEX.
CODE CRIM. PROC. ANN. art. 38.07(b)(1) (West Supp. 2014); State v. Dudley, 223 S.W.3d 717, 726
(Tex. App.—Tyler 2007, no pet.); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio
1994, pet. ref’d). Since the State was entitled to rely on the so-called one-witness rule set forth in
Article 38.07(b)(1) if that witness established all of the elements of the offense beyond a reasonable
doubt, its extensive questioning of Horner was focused on determining whether he would be unable
to render the appropriate verdict. This made the basis of the State’s challenge for cause apparent
to the trial court and the parties, even though it was not explicitly stated. Likewise, Akin’s voir
dire examination of Horner sought to establish that Horner would be able to correctly apply the
one witness rule and render an appropriate verdict. Even though his objection might have been
more clearly stated, we believe the grounds for his objection, in the context of the entire voir dire
examination, were abundantly clear to the trial court and the parties. Akin has preserved this point
of error.
(b) Error Was Not Waived
Nevertheless, the State also contends that, even if Akin initially preserved his point of error,
he waived it when the jury panel was seated without objection. The State points out that, after jury
selection was completed, the trial court read the names of the jurors and asked Akin whether he
had any objections to the jury as seated, to which he answered, “No, your Honor.” The State
argues that, under Thomas, the record must plainly demonstrate that the defendant did not intend
to waive objections he had previously asserted when he subsequently stated he had no objections.
22
Thomas, 408 S.W.3d at 885. Based on language in Thomas, the State argues that, “if from the
record as a whole the appellate court simply cannot tell whether an abandonment was intended or
understood, then, consistent with prior case law, it should regard the ‘no objection’ statement to
be a waiver of the earlier-preserved error.” Id. Thomas involved the admission of evidence that
had been the subject of a motion to suppress and was later proffered by the State during the
punishment phase following Thomas’ plea of guilty. Id. at 878–79. When proffered, Thomas’
attorney stated he had “‘no objection’ to the admission of the evidence.” Id. at 879. Even in that
context, the Texas Court of Criminal Appeals stressed that the abandonment rule should not be
applied inflexibly, especially “when the record otherwise establishes that no waiver was either
intended or understood.” Id. at 885.
In a recent case, that Court applied Thomas in the context of previously preserved voir dire
error. Stairhime v. State, 463 S.W.3d 902 (Tex. Crim. App. 2015). The intermediate appellate
court had held that the appellant waived any error related to the trial court’s sustaining the State’s
objections to some of his voir dire questions when, “at the end of voir dire, the trial court asked,
‘Does either side have an objection to the panel or as to the jury as selected?’ [and] [b]oth Appellant
and the State responded, ‘No, Your Honor.’” Id. at 902–03 (quoting Stairhime v. State, 439 S.W.3d
499, 507 (Tex. App.—Houston [1st Dist.] 2014), rev’d, 463 S.W.3d 902. In reversing the Court
of Appeals’ judgment, the Court of Criminal Appeals emphasized that the rule set forth in Thomas
requires the appellate court,
when assessing the meaning of an attorney’s statement that he or she has “no
objection” in regard to a matter that may have been previously considered and ruled
on, [to] ask whether “the record as a whole plainly demonstrates that the defendant
did not intend, nor did the trial court construe, his ‘no objection’ statement to
23
constitute an abandonment of a claim of error that he had earlier preserved for
appeal.”
Stairhime, 463 S.W.3d at 906 (quoting Thomas, 408 S.W.3d at 885). In applying Thomas, the
Court noted:
Asking whether there is an objection to “the seating of the jury,” or “to the panel,”
or “to the jury as selected,” makes reference to no specific event that may have
occurred previously during the course of the voir dire. The context and timing of
questions such as those suggest that they refer to nothing more than the process of
confirming that the parties’ peremptory strike lists have been properly executed to
arrive at the otherwise intended petit jury.
Id. at 907. In the Court’s opinion, it was not “remotely possible that the trial court’s question . . .
was directed at whether either party desired to waive previously preserved error that may have
occurred during voir dire.” Id. at 906–07. The trial court’s question of whether there were
objections to the jury panel was not sufficiently specific to put a party on notice that the trial court
was not only asking to hear objections on the seating of the jury, but on every issue that may have
occurred during voir dire. Id. at 908. It also appears that, in the case of preserved voir dire error,
there must be evidence in the record of an express, affirmative waiver of the previously preserved
error. Id.13 Thus, the Court held that replying
“None” or “No, Your Honor,” to the question of whether there is an objection to
“the seating of the jury,” or “to the panel,” or “to the jury as selected” at the
13
In Stairhime, the Court stated:
Examining the record as a whole, we conclude that it demonstrates that Appellant neither intended,
nor did the trial court likely believe he intended, to waive any error he had previously preserved
with respect to the questions he wanted to propound to prospective jurors. This is not to say, of
course, that an appellant may not affirmatively waive his ability to raise previously preserved voir
dire error on appeal by a clear and unequivocal statement on the record that he wishes to do so.
Stairhime, 463 S.W.3d at 908.
24
conclusion of jury selection does not constitute a waiver of any previously
preserved claim of error during the voir dire proceedings.
Id.
Similarly, in examining the record in this case, Akin’s negative response to the trial court’s
inquiry whether he had any objections to the jury as seated does not constitute a waiver of his
previously preserved error as to the excused juror. The trial court’s granting of the State’s
challenge of Horner for cause came relatively early in the State’s voir dire. It was only after the
State completed its voir dire, Akin completed his voir dire, and the parties exercised their
peremptory strikes that the trial court asked whether there were any objections to the jury as
selected. In this context, we do not think the trial court intended to inquire, or that the parties
understood it to inquire, whether Akin or the State desired to waive any previously preserved error
occurring during voir dire. Akin did not waive this point of error.14
(c) The Ruling Was Within the Trial Court’s Discretion
When determining whether the trial court erred in its ruling on a challenge for cause, we
examine “the entire record of voir dire to determine if the evidence is sufficient to support the
court’s ruling.” Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011) (citing Feldman
v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002)). The trial court’s ruling is afforded “great
deference” since it was able to observe both the demeanor and tone of voice of the venireperson.
14
We recognize that some of our sister Courts of Appeals have found a waiver under circumstances similar to those in
this case. See, e.g., Ham v. State, 355 S.W.3d 819, 823–24 (Tex. App.—Amarillo 2011, pet. ref’d); Dixon v. State,
No.14-05-00131-CR, 2006 WL 2548175, at *5–6 (Tex. App.—Houston [14th Dist.] Sept. 5, 2006, no pet.) (mem. op.,
not designated for publication); Canales v. State, No. 05-94-01741-CR, 1996 WL 547955, at *4 (Tex. App.—Dallas
Sept. 17, 1996, no pet.) (not designated for publication); Franklin v. State, No. 01-87-00097-CR, 1988 WL 139732,
at *2 (Tex. App.—Houston [1st Dist.] Dec. 22, 1988, no pet.) (not designated for publication). However, none of
these cases had the benefit of the 2015 Court of Criminal Appeals decision in Stairhime.
25
Id. (citing Feldman, 71 S.W.3d at 744). Deference is particularly “due when the venireperson’s
answers are ‘vacillating, unclear, or contradictory.’” Id. (quoting Davis v. State, 313 S.W.3d 317,
344 (Tex. Crim. App. 2010); Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999)). Only
when the record shows a clear abuse of discretion will we reverse the ruling. Id. (citing Davis,
313 S.W.3d at 344).
The State may challenge a juror for cause if “he has a bias or prejudice against any phase
of the law on which the State is entitled to rely for conviction or punishment.” TEX. CODE CRIM.
PROC. ANN. art. 35.16(b)(3); Gonzales, 353 S.W.3d at 831. When a venireperson exhibits such
bias or prejudice, “[t]he test is whether the venireperson’s ‘bias or prejudice would substantially
impair [his] ability to carry out his oath and instructions in accordance with the law.’” Gonzales,
353 S.W.3d at 831 (citing Feldman, 71 S.W.3d at 744). When the State makes such a challenge
for cause, it is the State’s burden to establish that the venireperson “is in fact incapable of, or at
least substantially impaired from, following the law.” Castillo v. State, 913 S.W.2d 529, 533 (Tex.
Crim. App. 1995) (citing Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988)
(plurality op.)). To have the venireperson struck for cause, the State “must show that the
venireperson understood the requirements of the law and could not overcome his prejudice well
enough to follow the law.” Gonzales, 353 S.W.3d.at 832 (citing Feldman, 71 S.W.3d at 747). In
addition, when the challenge for cause is based on a claim that the venireperson is unable to abide
by the one-witness rule, as in this case, it is not enough to show that the venireperson needed more
than one witness to render a guilty verdict. See Lee v. State, 206 S.W.3d 620, 623 (Tex. Crim.
App. 2006); Castillo, 913 S.W.2d at 533. Rather, the State must show that the venireperson “could
26
not convict based on one witness whom they believed beyond a reasonable doubt, and whose
testimony proved every element of the indictment beyond a reasonable doubt.” Lee, 206 S.W.3d
at 623; Castillo, 913 S.W.2d at 533.
Akin admits that the record shows that Horner understood the law concerning the State’s
burden of proof. He argues that the voir dire of Horner shows that the State failed to carry its
burden of showing that Horner would not follow the law, since he affirmed that he would listen to
all the evidence and return a guilty verdict if the State met its burden of proof. However, this one
general statement does not require the conclusion that Horner would follow the law and conform
to the one witness rule specifically. We think that the record, as set forth above, shows that
Horner’s responses to the State’s questions are, at best, vacillating, unclear, and contradictory.
That is evident by the State’s extended questioning, in which it attempted mightily to elicit a clear
and unequivocal answer from Horner. In such a case, the trial court’s ruling is entitled to particular
deference. Further, the State repeatedly asked Horner if he would refuse to convict the
hypothetical defendant if there was only one prosecution witness, yet that witness convinced him
beyond a reasonable doubt of the defendant’s guilt. A similar question was approved by the Texas
Court of Criminal Appeals as sufficient under Castillo to establish the State’s valid challenge for
cause based on the one-witness rule. See Lee, 206 S.W.3d at 623–24. Finally, after repeated
attempts by the State to get his definitive answer, Horner flatly stated that he would refuse to
convict, even if the one witness convinced him of the defendant’s guilt. The record supports the
finding that Horner was at least substantially impaired from following the law. Therefore, we find
27
no abuse of discretion in the trial court’s granting the State’s challenge for cause. We overrule
this point of error.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice
Date Submitted: August 10, 2015
Date Decided: September 16, 2015
Do Not Publish
28
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00179-CR
WILLIAM JAMES AKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-13-24795
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
William James Akin was convicted by a Fannin County jury in this case of indecency with
a child by sexual contact1 and assessed punishment of twenty years’ confinement in the Texas
Department of Criminal Justice Correctional Institutions Division. This case was tried with three
companion cases, which are the subject of other appeals pending before this Court.2 Akin filed a
single, consolidated brief covering all four appeals, in which he contends that the trial court erred
(1) in admitting two photographs of adult pornographic websites and two photographs of internet
search history pages and (2) in granting the State’s challenge of a juror for cause.
The arguments raised in this appeal are based exclusively on the arguments brought before
this Court in the companion appeal styled Akin v. State, cause number 06-14-00178-CR. In our
opinion of this date disposing of that appeal, we found that (1) although the trial court erred, there
was no reversible error in the admission of the complained-of evidence and (2) the trial court did
not abuse its discretion in granting the State’s challenge for cause. For the reasons set forth in that
opinion, we likewise overrule Akin’s points of error as they apply to this appeal.
1
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1) (West 2011).
2
In his companion cases, cause numbers 06-14-00178, 06-14-00180, and 06-14-00181, Akin appeals from his
convictions of one count of sexual assault of a child and two counts of indecency with a child by sexual contact.
2
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: August 10, 2015
Date Decided: September 16, 2015
Do Not Publish
3
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00180-CR
WILLIAM JAMES AKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-13-24796
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
William James Akin was convicted by a Fannin County jury in this case of indecency with
a child by sexual contact1 and assessed punishment of twenty years’ imprisonment. This case was
tried with three companion cases, which are the subject of other appeals pending before this Court.2
Akin filed a single, consolidated brief covering all four appeals, in which he contends that the trial
court erred (1) in admitting two photographs of adult pornographic websites and two photographs
of internet search history pages, and (2) in granting the State’s challenge of a juror for cause.
The arguments raised in this appeal are based exclusively on the arguments brought before
this Court in the companion appeal styled Akin v. State, cause number 06-14-00178-CR. In our
opinion of this date disposing of that appeal, we found that (1) although the trial court erred, there
was no reversible error in the admission of the complained-of evidence and (2) the trial court did
not abuse its discretion in granting the State’s challenge for cause. For the reasons set forth in that
opinion, we likewise overrule Akin’s points of error as they apply to this appeal.
1
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1) (West 2011).
2
In his companion cause numbers, 06-14-00178, 06-14-00179, and 06-14-00181, Akin appeals from his convictions
of one count of sexual assault of a child and two counts of indecency with a child by sexual contact.
2
We affirm the judgment of the trial court.
Ralph K. Burgess
Justice
Date Submitted: August 10, 2015
Date Decided: September 16, 2015
Do Not Publish
3
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00181-CR
WILLIAM JAMES AKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-13-24979
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
William James Akin was convicted by a Fannin County jury in this case of indecency with
a child by sexual contact1 and assessed punishment of twenty years’ imprisonment. This case was
tried with three companion cases, which are the subject of other appeals pending before this Court.2
Akin filed a single, consolidated brief covering all four appeals, in which he contends that the trial
court erred (1) in admitting two photographs of adult pornographic websites and two photographs
of internet search history pages and (2) in granting the State’s challenge of a juror for cause.
The arguments raised in this appeal are based exclusively on the arguments brought before
this Court in the companion appeal styled Akin v. State, cause number 06-14-00178-CR. In our
opinion of this date disposing of that appeal, we found that (1) although the trial court erred, there
was no reversible error in the admission of the complained-of evidence and (2) the trial court did
not abuse its discretion in granting the State’s challenge for cause. For the reasons set forth in that
opinion, we likewise overrule Akin’s points of error as they apply to this appeal.
1
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(2) (West 2011).
2
In his companion cause numbers, 06-14-00178, 06-14-00179, and 06-14-00180, Akin appeals from his convictions
of one count of sexual assault of a child and two counts of indecency with a child by sexual contact.
2
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice
Date Submitted: August 10, 2015
Date Decided: September 16, 2015
Do Not Publish
3