Robison v. State

• Decision Date: 22 January 2015
• Docket Number: NO. 14–13–00684–CR,NO. 14–13–00682–CR, NO. 14–13–00683–CR,14–13–00682–CR
• Citation: Robison v. State, 461 S.W.3d 194 (Tex. App. 2015)
• Parties: Mark Douglas Robison, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

461 S.W.3d 194

Mark Douglas Robison, Appellant

v.The State of Texas, Appellee

NO. 14–13–00682–CR

NO. 14–13–00683–CR

NO. 14–13–00684–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed January 22, 2015

Discretionary Review Refused April 22, 2015

Nicole Wignall Deborde, Houston, for Appellant.

Carol M. Cameron, Houston, for the State.

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

OPINION

Tracy Christopher, Justice

This is an appeal of a three-count conviction for possession of child pornography. We consider the following issues: (1) whether the trial court reversibly erred when it excluded evidence in support of appellant's affirmative defense; (2) whether appellant was denied the effective assistance of trial counsel; and (3) whether the prosecutor engaged in certain forms of misconduct. We overrule all three issues and affirm the trial court's judgment.

BACKGROUND

Appellant became a suspect in this case after authorities found that his personal computer had accessed a peer-to-peer network that trafficked in child pornography. Activity on the network indicated that appellant was sharing, or had previously downloaded, a picture of a child engaged in a sexual act. Based on that finding, police obtained a warrant to search appellant's residence for evidence of child pornography. The warrant was executed in October of 2011.

When they arrived on scene, police removed appellant from the premises, but they did not immediately place him under arrest. Appellant was detained in a vehicle outside, where police conducted an informal interview. During the investigative detention, appellant was asked about his profession, and he explained that he worked in the IT field as a computer programmer. When the questions turned to the subject of peer-to-peer networks, appellant terminated the interview and requested to speak with an attorney.

During their search, police found a folder on appellant's personal computer containing thousands of files of child pornography. The State elected to prosecute appellant for possessing just three of the files, two of which were videos and the third a still photograph. Appellant admitted at trial that he knowingly possessed the files, but he claimed that his possession was legally excused because he was using the files for a bona fide educational purpose.

Appellant's defensive theory was that he was trying to understand the scope of child sexual abuse so that he could propose a solution to the problem. Appellant supported his theory with testimony about how his own life had been affected by sexual abuse and the efforts he had taken to raise public awareness of the issue. Appellant testified, for instance, that his wife and cousin were sexually abused, and that their stories helped him realize that he too was once abused as a child.

When appellant first learned of his wife's abuse in 1990, one of his earliest responses was to “get [his] emotions out” by writing poetry. In 1992, appellant self-published a collection of poems in a book entitled Man to Man: Poems for Men.

Some of the poems addressed themes such as “right and wrong” and “nastiness” in the world. One poem also specifically referenced the abuse suffered by appellant's wife. None of the poems expressly broached the subject of child pornography.

In 2013, after appellant was indicted but before his trial had commenced, appellant and his wife co-authored an educational book, which they self-published under the title, HELP US PLEASE: What YOU Can Do To Eradicate Sexual Abuse and Child Pornography. The book was divided into three parts. In Part One, appellant and his wife described their own histories of sexual abuse and the pervasiveness of child pornography on the internet. In Part Two, they focused on the problems associated with child sexual abuse, including the harm to the child and the societal constructs that contribute to the proliferation of child pornography. They argued that one of the worst problems is the failure of governments to prioritize; they opined that governments should focus more on stopping the people who inflict actual harm against children, instead of prosecuting those who merely view child pornography. In Part Three, appellant and his wife proposed several ideas that both individuals and governments should take to solve such problems.

Appellant offered each of his books into evidence, but the trial court excluded them both. Appellant was allowed, however, to testify about the contents of the books and his thought processes as he created them.

In addition to his writings, appellant testified that he tried to increase awareness of child sexual abuse through other forms of media. After being indicted, appellant co-hosted a radio program that discussed the subject of child sexual abuse. With the assistance of his wife, he also created a website, which he dubbed the “Museum of Sexual Abuse.” The purpose of the website was to provide visitors with a forum to submit personal stories of abuse. Appellant's idea was that “abuse belongs in a museum, not in our lives.” The website was founded after appellant's indictment, but by the time of trial, it had never been updated.

The State questioned the sincerity of appellant's affirmative defense. The State observed that appellant never approached law enforcement before he decided to investigate child pornography, even though appellant knew that the online distribution of child pornography was frequently tracked by law enforcement. Appellant also made no effort to contact a university, a peer review group, or an attorney for guidance before or during his alleged research. Despite his asserted passion for ending child sexual abuse, appellant failed to even alert his wife about his desire to research the issue. When authorities executed the search warrant, appellant's wife told investigators that she was unaware that appellant had been downloading child pornography.

The State drew attention to other omissions. It noted, for instance, that appellant saved thousands of pornographic images to his computer, but no scholarly articles about the issue. The State also emphasized that appellant chose to remain silent during the execution of the search warrant, rather than explain to investigators that he possessed the child pornography for a bona fide educational purpose. In a similar manner, the State emphasized that appellant never mentioned his affirmative defense to prosecutors during several pretrial hearings.

EXCLUSION OF EVIDENCE

In his first issue, appellant argues that the trial court reversibly erred when it refused to admit his two books into evidence. Appellant suggests that the two books were essential to establishing his affirmative defense. We analyze the trial court's ruling with respect to each book separately.

A. The Book of Poetry

Appellant offered the book of poetry for a single reason: to show that he had an interest in spreading his message in written form. The State objected on the basis of relevancy and hearsay. Appellant responded that he was not offering the book for the truth of the matter asserted; he even assured the trial court that he had no plans to discuss the meanings of individual poems. Appellant merely intended to show that he was trying “to get the word out.” The trial court sustained the State's objection.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006). A trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to guiding rules or principles. See State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005).

Assuming for the sake of argument that the trial court abused its discretion by excluding the book of poetry, the trial court's error is subject to a harm analysis for nonconstitutional error. See Walters v. State, 247 S.W.3d 204, 219 (Tex.Crim.App.2007). Under this standard, error must be disregarded unless it affected the defendant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. See Schmutz v. State, 440 S.W.3d 29, 39 (Tex.Crim.App.2014). If the error had no or only a slight influence on the jury's verdict, the error is harmless. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). An appellate court should 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.” See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). Other important factors include the jury instructions, the State's theory and any defensive theories, closing arguments, and even voir dire, if applicable. See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002).

After the trial court excluded the book of poetry, appellant explained to the jury that he wrote the book to cope with the emotional turmoil of realizing that his wife had been sexually abused as a child. Appellant testified further that his poetry clarified his thoughts about both child sexual abuse and child pornography. It is apparent from this testimony that appellant was fully able to establish that he had an interest in writing about child sexual abuse, which in turn supported his theory that he possessed the child pornography for a bona fide educational purpose. Cf. Johnson v. State, 925 S.W.2d 745, 749 (Tex.App.–Fort Worth 1996, pet. ref'd) (exclusion of evidence is harmless if the nature of the evidence is established through other means). Because appellant further claimed that he had no intentions of discussing the contents of his book, we can reasonably determine that the exclusion of the book had no or, at most, only a slight influence on the jury's verdict.

B. The “HELP US PLEASE” Bo...