Akin v. State

• Decision Date: 16 September 2015
• Docket Number: No. 06-14-00178-CR,06-14-00178-CR
• Citation: Akin v. State, No. 06-14-00178-CR (Tex. App. Sep 16, 2015)
• Court: Texas Court of Appeals
• Parties: WILLIAM JAMES AKIN, Appellant v. THE STATE OF TEXAS, Appellee

WILLIAM JAMES AKIN, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-14-00178-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 10, 2015

September 16, 2015

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 MorrissMEMORANDUM 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.

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.

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 saidnothing, 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-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. Wagoneralso 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...