William James Akin v. State

ACCEPTED
06-14-00178-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/21/2015 12:04:50 PM
DEBBIE AUTREY
CLERK
Nos. 06-14-00178-CR; 06-14-00179-CR; 06-14-00180-CR; 06-14-00181-
CR FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
9/21/2015 12:04:50 PM
IN THE COURT OF APPEALS DEBBIE AUTREY
Clerk
FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA
WILLIAM JAMES AKIN
Appellant
v.
THE STATE OF TEXAS
Appellee
ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF
FANNIN COUNTY, TEXAS
THE HON. LAURINE BLAKE, JUDGE PRESIDING
TRIAL COURT CAUSE NUMBERS:
CR-13-24791; CR-13-24795;
CR-13-24796; CR-13 24979
APPELLANT’S MOTION FOR REHEARING
STEVEN R. MIEARS
State Bar No. 14025600
211 North Main
Bonham, Texas 75418
Tel: 903-640-4963
Fax: 903-640-4964
Email: SteveMiears@msn.com
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now William James Akin, appellant in the above entitled and
numbered cases, and submits this motion for rehearing under Rule 49.1 of the
Texas Rules of Appellate Procedure, and requests that the court reconsider its
opinion of September 16, 2015.
POINT OF ERROR ONE:
The Court of Appeals errs in finding that the admission of several
disturbing pornographic photographs was harmless error by incorrectly applying
the proper standard of review. For quick reference the photos are reproduced
below, and in the format in which the jury considered them.
ARGUMENT
Modern trial advocacy teaches lawyers to use photographs to embed a point
within the juror’s mind – indelibly so they recall it during their deliberations. They
are taught that the brain retains information differently according to the nature of
the information it is exposed to – especially a narrative coupled with graphic
exhibits. The expression "Use a picture. It's worth a thousand words" is the
pedagogical mantra for how to triumph at trial. Studies of the brain, and research
on learning, have shown that people learn best when all their senses are engaged.
The brain is most active when stimulated in various ways. In practical terms, this
means that jurors will absorb more information, and be more receptive to the
advocate’s theme when the case is presented in a multimedia format. Joining the
narrative with graphics enhances the impact. See Janet L. Hoffman, Litigation
Journal SPRING 2011 • Vol. 30 No. 1.
The Court aptly points out that a reviewing court must analyze “the
character of the alleged error and how it might be considered in connection with
other evidence in the case.” Akin v. State, No. 06-14-00178-CR, p. 14. In
weighing the effect of this raw smut on the minds of these jurors, the Court’s
opinion fails to properly judge the power of the photos to destabilize the integrity
of the trial process. The coupling of these images of interracial gang sodomy with
the testimony that, “Akin was watching aggressive and vulgar pornography,
including wife-raping video recordings, forced sex, and simulated rape . . .”
caused their impact to be hardened. Instead, the Court’s opinion erroneously
minimizes the impact of the photos precisely because it was joined with narrative
testimony. 1 Akin v. State, No. 06-14-00178-CR, p. 14.
1
The Court’s opinion points out that the question of the admission of this testimony was not raised on appeal.
The Court’s opinion, therefore, implicitly acknowledges this too was irrelevant testimony, and error. The Court’s
opinion suggests that had only this error been complained about on appeal then the case for the harm from the
pictures would be evident. However, the record is replete with this testimony being introduced without a
continuous running objection – sometimes admitted even by the Appellant himself. The error, therefore, would
no-doubt have been determined to have been waived. Nevertheless, harm should be analyzed from the state of
the entire record as the evidence was presented to the jury – not from what it could have been from a perfect
trial or appeal. “In assessing the likelihood that the jury's decision was adversely affected by the error, an
rd
appellate court considers everything in the record.” Schumtz v. State, 440 S.W.3 29,39 (Tex. Crim App. 2014).
The Kotteakos standard established by the U.S. Supreme Court is the same
one for review as the Texas standard for non-constitutional error on direct appeal.
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; see also Motilla v. State, 78
S.W.3d 352, 355-58 (Tex. Crim. App. 2002) and Johnson v. State, 43 S.W.3d 1, 4
(Tex. Crim. App. 2001).
“Grave doubts" means "in the judge's mind, the matter is so evenly
balanced that he feels himself 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. Id.
As explained in Russell v. State, 113 S.W.3d 530, 549-550 (Tex. App. Fort
Worth 2003), the defendant need not prove harm from an error. There ordinarily is
no way to prove "actual" harm. It is instead the duty of the reviewing court to
assess harm from the context of the error. The proper inquiry is whether the trial
court's error in allowing the State to introduce these photographs substantially
swayed or influenced the jury's verdict, or whether we are left in grave
doubt whether this evidence swayed or influenced the jury's verdict. If the
answer to either inquiry is “yes” -- then the error was not harmless. See
Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248; Johnson, 43 S.W.3d at 4.
The Court’s opinion correctly finds these exhibits were irrelevant to any
issue. The State erred in offering them. The trial court erred in admitting them.
The jury should never have been sent the clear message that they were important
in determining his guilt or innocence. Nor should their potential for impacting the
assessment of his punishment be overlooked. In making its determination the error
was harmless, this Court errs in failing to consider the potential ability of these
photographs “to impress the jury in some irrational, yet indelible, way.”
Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). See Motilla,
78 S.W.3d at 355-56.
As stated in Harris v. State: “[A] reviewing court in applying the harmless
error rule should not focus upon the propriety of the outcome of the trial. Instead,
an appellate court should be concerned with the integrity of the process leading to
the conviction. . . . If the error was of a magnitude that it disrupted the [jurors']
orderly evaluation of the evidence, no matter how overwhelming it might have
been, then the conviction is tainted. Again, it is the effect of the error and not the
other evidence that must dictate the reviewing court's judgment.” 790 S.W.2d 568,
587-88 (Tex. Crim. App. 1989). Russell v. State, 113 S.W.3d 530, 549-550 (Tex.
App. Fort Worth 2003).
This case is close to the facts in Thrift v. State, 134 S.W.3d 475 (Tex. App.
Waco 2004). In Thrift, the Court appropriately concluded 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. Horrific images.
In considering the sway of these photos it matters little that the State’s
references to the pictures comprised “only two paragraphs out of twelve and one-
half pages of the State’s closing argument in the transcript.” Akin p. 15. While a
picture may be worth a thousand words, in this case they are worth a tome.
PRAYER FOR RELIEF
For the reasons herein alleged, appellant prays the court grant this
motion for rehearing, set aside the opinion of July 24, 2015, reverse the judgment
and sentence, and order a new trial.
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 Motion for Rehearing was delivered by electronic e-mail service to
Richard E. Glaser, Fannin County Criminal District Attorney; 101 East Sam
Rayburn Drive; Bonham, Texas 75418; on September 21, 2015; and, that a copy
was mailed to the Appellant, William Akin, TDC# 01955082, at 11950 FM 998;
Dalhart, TX 79022
________________________
Steven R. Miears.