Robison, Mark Douglas
PD-0214-15
| Tex. App. | Feb 26, 2015Background
- Robison was indicted on three counts of possession of child pornography after a search tied files to his IP address; trial resulted in three guilty verdicts and 10-year sentences with fines.
- At trial Robison testified he possessed the material for a bona fide educational purpose and sought to introduce two books he authored explaining that defense.
- Trial court sustained the State’s objection and excluded both books, which Robison contends foreclosed his affirmative defense and his right to present a complete defense.
- Robison also alleges prosecutorial misconduct: repeated references to his invocation of the right to remain silent and use of silence to impeach his testimony and witnesses.
- The Fourteenth Court of Appeals affirmed; Robison petitions the Court of Criminal Appeals raising two grounds for discretionary review: (1) constitutional error from excluding his books and correct harm standard on appeal, and (2) whether prosecutorial-misconduct claims can ever be reviewed absent a contemporaneous objection given Supreme Court precedent on fundamental error.
Issues
| Issue | Robison’s Argument | State’s Argument | Held (Court of Appeals decision under review) |
|---|---|---|---|
| Exclusion of authored books | Exclusion denied his constitutional right to present a complete defense; appellate court must apply constitutional (beyond-a-reasonable-doubt) harm standard | Exclusion was not reversible constitutional error; appellate court applied nonconstitutional/substantial-rights harm review | Court of Appeals applied nonconstitutional harm analysis and affirmed conviction |
| Preservation of prosecutorial misconduct claim | Persistent improper comments and questioning about silence infected trial; fundamental error standard (no contemporaneous objection required) | Contemporaneous objection required to preserve prosecutorial-misconduct issues for appeal (per Penry/Cook/Estrada) | Court of Appeals held error not preserved for review because no timely objection; Robison contests this rule |
Key Cases Cited
- Crane v. Kentucky, 476 U.S. 683 (discusses right to present a defense)
- Holmes v. South Carolina, 547 U.S. 319 (defendant’s right to present a complete defense)
- Darden v. Wainwright, 477 U.S. 168 (prosecutorial remarks violate due process if they so infect trial with unfairness)
- Donnelly v. DeChristoforo, 416 U.S. 637 (standards for improper prosecutorial comments)
- Parker v. Matthews, 132 S. Ct. 2148 (review standard and deference to Supreme Court precedent on improper remarks)
- Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) (preservation/waiver principles in Texas appellate practice)
- Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) (contemporaneous-objection rule applied to jury argument claims)
- Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) (failure to object forfeits review of opening/closing statement errors)
- Cook v. State, 858 S.W.2d 467 (Tex. Crim. App. 1993) (requirements to preserve jury-argument error)