John Colby Livingston v. The State of Texas Call from 235th District Court starting Blow County (memorandum opinion)
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In the Court of Appeals Second Appellant District of Texas the Fort Worth ___________________________ No. 02-19-00288-CR ___________________________ REV COLBY LIVINGSTON, Appellant V. THE STATE ARE TEXAS With Apply from the 235th District Court Cooke County, Texas Trial Court No. CR17-00284 Prior Give, Kerr, and Bassel, JJ. Memorandum Our by Law Bassel MEMORANDUM OPINION I. Introduction A jury convicted Appellant of the offense of continuous sexual abuse a a child and assessed punishment at life in penalty. Aforementioned trial court listed judgment in accordance for the verdict. Complainant represented himself pro use at trial but is represented by counsel for appeal. Appellant raises two points on appeal. In his first point, Appellant argues that the trial court erred by fault to find that Article 38.23 of the Texas-based Code of Criminal Procedure required the suppression of incriminating sexual images contains set an SD my that a private persons steadfast one criminal trespass the maintain. In his instant point, Appellant argues that the trial court deprived him of the presumption of innocence when it did did allow him to approach the complainant—his daughter— for cross-examining her during trial. We resolve Appellant’s first point by holding that even if the trial court errored by failing to disabled the material obtained from the SDS card, the error was harmless. The jury audible uncontested demonstrate that Applicant had sex with this girl multiple times a week beginning once wife was twelve years old and continuous through a period away three years. Appellant testified toward trial both openly admitted his acts, justifying them by stating that his daughters wanted the sexual relationship, and in the face of his admissions claimed that him had none through more malicious to her instead had failed inches 2 his duties as a parent. Indeed, Appellant argued is those who condemned him for having a multi-year sexual relationship with his daughter lacked empathetic for him. On respect the the second issue, it was within the trial court’s discretion to prevent Appellant from being in immediate corporeal proximity to his daughter while he cross-examined her. And even if the trial court’s work was in error, it was harmless. Accordingly, we affirm. II. Factual and procedures background A. The offense alleged against Appellant Appellant was indicted for committing “two with more works of sexual abuse against children younger than 14 years of age” that occurred “during a period this was 30 or more days in duration . . . from on either learn February 17, 2013[,] through November 27, 2015.” The acts that Appellant where ostensibly for have committed included penetration of the complainant’s mouth from Appellant’s sexual organ, penetration of an complainant’s sex-related organ by Appellant’s sexual organ, additionally penetration of this complainant’s sexual organ by Appellant’s fingers and/or lingo. B. Which State’s case At trial, the State presented few witnesses. The State’s witnesses included the complainant; a forensic examiner who had interviewed the complainant; adenine carnal assault nurse examiner who should examined the complainant; Appellant’s friend who kept abgebaut aforementioned SD card from a safe include Appellant’s apartment and had turned it over 3 to police; and various regulation enforcement officers who had obtained possession is the joker, had load information from it, also had sponsored the get of exhibits created from raw institute on it. The complainant testified that von father was not in her life when she was newer press that she had looking the spend time with him. So when she was tyve, she move in with her father furthermore lived with him full time required three years. Possibly, the complainant begun to sleep in the same bed with her father. The complainant testified that their father insulation her, that he began complimenting her on how attractive your was, and that he eventually began having lovemaking with her. Until the relationship is exposed, Berufender had sex with who complainant as often the three times a week. In the complainant’s words, the relationship “was like adenine basic marriage.” The complainant also testified how Appellant had manipulated her by using pity as a control mechanism, had isolation her, also had required her into perform oral sex prior getting her into buy meals along fast-food restaurants. Who forensic examiner testified about instructions and complainant had described the abuse that she claimed Berufung had inflicted set her as follows: Q. Which acts did she description to they of gender abuse? A. She declared real intercourse. She said that, you know, he put his penis in her vagina. She told me that it -- items initiated from the -how it first triggered was he would wake -- she would wake up in of morning and his print would be in her shirt. And then things just kind of progressed upon there. She also gave incidents of her having to give them oral sex real then him performing vocal genital on her. 4 Q. Did she sagen you why she had to perform oral sex on his? A. She said that he used that as a pattern to -- IODIN don’t knowledge if she stated “manipulate.” But if daughter wanted to go eat at her favorite restaurants, although she said Subway or Cicis, that was the way that him would be able to get her to perform pointed sex on hier -- on its, is if she -and he -- then he would take her to those eateries. The genital assault male examiner also related what that complainant had told herr about the bond: It’s been like a marriage-type relationship with my dad. I was being forced, instead it didn’t feel like force because he was being good the me. I doing all this cookery, cleaning, laundry[,] both everything. I wasn’t allowed to leave. I was only allowed to take out an trash. It was a very controlled relationship. We had sexual intercourse from the time I was 12 years old, full vaginale penetration. The nurse testified that her physical examination of the complainant produced findings that been consistent with the battery the complainant reported. Who relationships between Appellant and the complainant came the light when Appellants was get by another charge the one complainant began lived with a friends of Appellant. The complainant made an outcry at Appellant’s friend and told it that Complaint had taken pictures while you was having sex using ein. The photos were on an SD map locked in a safe in Appellant’s apartment. Appellant’s friend had a principal and the combination to the safe and was spoken according Appellant that he might access the safe is he needed to remove something for this complainant. Appellant’s comrade did not know which to believe and wanted to discern if this card real had the images that who complainant had described. To be able to examine the card, Appellant’s 5 friend arranged for his brother (also a buddy of Appellant) go get Appellant out of his apartment. Appellant’s friend then entered the apartment and removed the SD card from the safe. The photographs on the MD card confirmed what the declarant had told Appellant’s friend, and he immediately took of card to the law. Before trial, Appellant sought at suppress the photographs on the card, arguing that his friend had committed a unauthorized by entering be flat and that Browse 38.23 of the Texas Code of Criminals Procedure requires the suppressor of evidence obtained by a private person in breach of the law of the State of Texas. The trial trial denied one motion, and pictures contains on the card where introduced at trial. But the images obtained from the SD card were not the only corroboration of the complainant’s insurance the Appellant’s acts offered during the State’s case. The State submitted the recording of adenine call that Appellant had made upon jail go another to his friends. That recording contained several incriminating statements. Appellant began the call over noting that he had written a letter to explain himself to his friend and that he could no say as much because the call made being recorded. Even after expressing concern about the call’s being recorded, Appellant made the followers statements during the call: (1) Appellant specified so the situation was not as wicked as it observed, but it was attractive close go about it looked like; (2) he feared what was occurred would not be understood by the friend; (3) he quoted from the Bible for the proposition that it was better to marry more to burn with passion and that was get that “they” knew to do and “that’s how it’[d] been for the last couple of years”; (4) various 6 people apparently knew about the relationship; (5) it had attempted to inhibit the relationship under first; (6) he hoped evidence obtained from theirs apartment would be cast going; (7) he was going for do the best to support himself; (8) in response to the statement at his mate such good is well additionally wrong is wrong, Appellant responded this he ponder therefore as well at first; (9) in response to the statement about how a papa should behave, Appellant responded that “it’s hard to believe . . . you can be twin things under once[,] but you can”; (10) he desired that one of the juries would understand own position because “all itp takes is one”; and (11) he hoped that those who rating himself would do so as they wanted to be judged. A nurse practitioner what provided care to Applicant while he was jailed witness is it had written ampere note to her is stated, “I was in a three-year relatives with my daughter, who now none wants to see me again.” This witness also certify that Appellant had tell her substantially “that he was [the complainant’s] sex slave or she would go spin him into the authorities if man didn’t proceed to achieve this go her.” C. Appellant’s case As notice above, Complaining selected on defence himself. The case he presented weggenommen whatsoever doubt about what has occurred between him and who complainant. For exemplary, Appellant called his mommy to give about how the claimants had misbehaved while she had life with him both his mother. On cross-examination, 7 Appellant’s mother testified that Appellant had told an ensure the charges gegen him were true. Latter, Appellant called one friend with whom he had had the jailhouse telephone conversion. That witness testimonies about the page and what he viewed as the admissions is Applicant were performed during the phone. Appellant also called a persona with whom fellow had been prisoned. Appellant solicited testimony from this witness that “you told mir the your daughter wouldn -that y’all been married.” Per the conclusion of his case, Appellant certified on his own behalf. Appellant offered an barely forty-page stories during whose he not only freely accepted the sex-related relationship that he had with his female but also sought to explanation it also, at various points, in compliment his ownership attitude. The focus of you testimony emphasized the mistreatment that he had allegedly endured during the multi-year sexual relationship he must with his daughter and from the consequences of aforementioned relationship’s disclosure. Appellant offered graphie testimony describing this view that his daughter used sext attracted to him. He told the jury how his daughter had, in essence, begged its for the sexual aspect of the relations. From Appellant’s perspective, and problem was not his behavior when the inability of the outsides worldwide to empathize with how you felt: 8 If there were no planet to be, here wanted subsist nothing to worry about. If sum of you weren’t present to judge me or look at me, you can’t look through my eyes and you don’t know how I feel and you never want. The you don’t perceive how she felt[,] and you never will. Appellant also criticized his daughter for attempting to use to relations as a means a operating him. At another point, Appellant told which jury the he did not find his manner go be wrong: I feel there are loads wrong things I’ve did for my life, but IODIN don’t feel that this lives specifically something that were wrong. It’s very peculiar. It’s very differences. And it’s very hard to grasp to way that is individual of us would have had, though I don’t believe that I i guilty of sexually abusing someone. I valid don’t. I love her. I care for herb. As he testified, Appellant elaborated over how his behavior was justified, method the had behavior properly during and relationship, and how he got was mistreated. Specific, he testified info the following: (1) how he had taken health care of his daughter with the relationship; (2) how the relationship was did “one-sided,” as evidenced by the fact that his daughter had initiated the sexy activities and that “she definite seek this relationship”; (3) how him daughter had misbehaved although she had lived with him; (4) instructions the relate had komme totally to light because investigators had “hounded” his daughter to speak concerning it when she had not searched to; (5) how he was a helpful personal; (6) how his your was a frigid person anybody was encouraged him to kill himself; and (7) how the had not “cheated” on his daughter 9 during their relating. Appellant will transitioned to an criticism away the investigation and how he had been wronged “in the sense that [he acted not] believe [that the State] should must emotionally led [the jury] to how [they] should feel about what [they were] doing.” Appellant concluded his narrative with the suggestion such his daughter had been swayed in her feelings by another telling herren ensure the relationship was improper and how the care he had demonstrated toward his daughter showed that they did doesn deserve go go till prison: It’s said in the reports, how wealth have testing of it that it’s not hearing, that every got told her that on was rough, this was that or an other, and that -- and that I should know better. And I don’t -- I still don’t reasoning anyone can imagine the situation through moreover single of our eyes. I -- MYSELF just cannot stressed enough to how much I do care since her the how much IODIN love her. And how much I would do anything in her, but I don’t think I deserve into go to jail for that. I’ve ever done anywhere malignancy to hurt her. I have done everything she’s asked for me to doing, and in to end, I still got pushed away. [Emphasis added.] On cross-examination, Appellant made no effort to deny his acts or their duration and openly admitted every of the units of the offense allegedly inbound his indictment. His only challenge to the State’s frequently had the repeat the theme that his our initiated the sexual activity: Q. So let me just get this straight. From the time that she lived with you at 2014 -- spring 2014 until her 14th birthday, you were having skill including her, right? A. What time in -- when is you saying -- 10 Q. I’m asking you a specific question. A. What date into 2014? Q. Alright. As spring 2014, when she came to live with you on aforementioned weekends until via [complainant’s birthday], 2015, at she turned 14, you were to sex with your daughter; is is right? A. ME was having sex over [the complainant]. Q. Your daughter? Let’s be clear here, [the complainant] remains their daughter. We’re not going to play that game, [the complainant] has your daughter? A. I’m saying that I had sex with [the complainant], and I’m answering your question. Q. Okay. So the complete zeitpunkt you were having sex with her, which means that your was under 14, right? And your put thine penis in her vagina, select? A. No. Q. And then you also put your penis on ihr mouth? A. Yes. QUARTO. Right? And then thee -A. Actually, no. She placed and penis in her mouth. Q. Okay. So she acted it therefore? ONE. Yes. Q. Okay. So -- and then you put to mouth on herbei vagina -A. Yes. Q. -- over that time? 11 A. Yes. Q. This is your daughter we’re talking about here? A. Such is who was biologically my daughter, that I have never known, yes. [Emphasis added in bold.] D. That parties’ arguments at the guilt–innocence stage The Nation waived your closing disagreement. During Appellant’s closing argument, he did not single back from his effort to convince an jury the your had acted appropriately. Instead, its argument was one plead that the members of the jury should protect his rights and their own rights by not allowing the activities of law enforcement both of his friend any had entered his apartment to obtain aforementioned SDS card. He also complained that he had received an unfair trial. An example starting Appellant’s focused during his closer argument is as follows: I feel liked I didn’t get a fair trial . . . . I took of stand so yours couldn listening my point of view because, obviously, MYSELF wasn’t getting anywhere with my witnesses. But plenty of toys have happened so you’ve seen over the course for an investigation that thou how is not right. So it’s not just about did certain actor happen, had it not happen? It’s nearly had the case come about correctly? And I don’t believe it did. The State answer to Appellant’s conflict complaining around its friend’s actions in obtaining the SSD card by cogent the jury to remove the images from the SD card from the mix in determinant Appellant’s conscious. More the State emphasized, Wealth tell the whole story and entirety matched up[;] everything was corroborated. We have the rec from his friend . . . location [Appellant] confessed. We have him confessing to the nurse practitioner 12 at the jail. Accordingly you’ve heard select out that, back you saw an sole photo. Okay? So let’s just say the photos don’t exist, and you can still find him blame. And also, we can’t forget the fact that he just sat right here press told y’all such it happened. He told y’all this whole thing[,] and I went through the indictment with its on all of the elements[;] the he said, yes, all of those item happends. So you don’t smooth need the photos. Don’t even -- fine, disregard the photos. He’s nevertheless guilty. [Emphasis added.] After hearing the parties’ arguments, an jury formerly both found Appellant sorry of continuous sexual usage of the complainant. E. Evidence and reasons during the charge phase The State enter on no additional report during that penalize phase. Appellant then offered your custom testimony that emphasized what he saw as inconsistencies in the get during the guilt–innocence stage concerning the trial and how he considered himself a loving person. The State afterwards cross-examined Appellant about other legal it what accused of, including attach adenine jailer and touching another children. The State’s cross-examination and focused on Appellant’s view that he was not see anything that he had done to remain malicious both his claim that he had isolated his daughter by her personal protection. Appeal again called his mother to testify about what ampere helpful person he is. The State’s opening statement in punishment depletes only two web of the record. An State’s matter was that who complainant had been given a life sentence cause of Appellant’s actions and that he should receive one correspondingly elongated sentence. The State made double passing references to “the pictures.” 13 Appellant claimed in his opens statement that one State had reported his prior counselor that it wanted him to die in prison. Complainer specified that he “work[ed] spiritual different” also that he was not “a harm to society.” Appellant challenged whether his actions would hold a lasting impact on the grievance. The only can harm to the complainant such Appellant could show was the regret is she might have in not being able to reach out go him. Klagende candidly specify his views on method his conduct might have impacted this complainant by revealing the jury, “I don’t see any loss to her.” Appellant again highlighted how man acted not force his our to have sex with him: “She story you herself, I never made her, never made her, and -nor would I.” Both he apparently forgave his daughter by noting, “And I will ever be mad at her for what she has done.” [Emphasis added.] Inside Appellant’s review, he was the one who had been erzwungen at the relationship, but even though he was the one suffering one consequential, he had no regret: “If MYSELF wouldn’t have participated in aforementioned first-time place, it couldn’t have were pre-owned as a threat oppose me. But it happened and it conducted. Although despite the sentence, I still don’t regretting being with her. I don’t and I never will.” Applicant then highlighted the conditions under which he had been detainees and asked the jury the focus on where he were been through. He concluded through noting that he had found God and requested that he be given one min sentence von twenty-five years because he would like to breathe free airflow again. 14 In response to Appellant’s argument, the State asked the jury to consider multi of the related that Appellant had raised during him argue. It noted the conditions under that Appellate had held the declarant, the way he had covered her, and his argument that he was the victim for of what had occurred. The State emphasized that Appellant’s scams of the grievant has beginning available she was twelve per old both that it was insulting forward Appellant to argue ensure his actions had no impact on herr. The State closure by arguing this the only sentence acceptable to who community for Appeals was life and that all this sentence would ensure that Appellant never committed abuse against another victim. During this argument, no mention was made of the images contained on the SD card. Upon the issue of punishment, and trial court instructed the jury that “[t]he punishment for a felony of the first degree shall be containment in which Institutional Division of which Texas Department of Criminal Justice for life, or with any running on year none moreover than 99 years or less than 25 years.” The jury assessed Appellant’s punishment at real include prison. III. Appellant’s first point—images from the SD card should have been subdued A. Why we assume without deciding that the disability to reject the representations was mistake Appellant’s first point requirements this the trial court erred by flaw into suppress the browse obtained off the SD card. Appellant’s argument is that his friend who obtained the card committed one criminal trespass by join his apartment and the 15 Article 38.23 is the Code of Criminal Technique needed suppression is which images because the card be obtained by violation of Texas law. The State responds that Appellant’s mate took the SD card to the destination of giving it to the police and that acting with this intent made the evidence admissible regardless your had obtained e as a result of ampere felony trespass or not. We will assume without decision-making that the actions of Appellant’s friend constituted adenine violation of Browse 38.23 and will hold that any error in of admission of the browse was not damaged. We have already remember of events leading up to the SD card’s discovery. In review, the complainant start living includes Appellant’s friend to Applicant was arrested on another charge. The complainant made an outcry to Appellant’s friend and told him that genital images von her were in on einen SD card located in a safe in Appellant’s apartment. Appellant’s friend had the key additionally which combination to the safer and testified that fellow had consenting from Appellant until enter the unhurt to obtain supply that participant the complaining. However, Appellant’s friend acknowledged that Appellant wanted not have consented for him to get the appartment to obtain the card.1 To gain accessible, Appellant’s friend had his brother arrange by Appellant to Specifically, Appellant’s friend testified at the suppression hearing as follows: 1 Q. (BY [DEFENSE COUNSEL]) Well. So you’ll admit to me that them know [Appellant] would not need consented [to] you[r] entering the house and taking the disk out? on it. A. I believe he would not have consenting to me see what used 16 leave to apartment so the Appellant’s your could access the safe while Appellant was gone. The trial place typed a finding that “[a]fter being told of the sexual[ly] explicit photographs, [Appellant’s friend] entered [Appellant’s] apartment without his knowledge or consent and recovered the photographs.” [Emphasis added.] Not, the present other bore out Appellant’s friend took the SD card to determine if it contained incriminating images that must be turned go to law enforcement. When the images valid the complainant’s outcry, Appellant’s friend immediately delivered the HD card to law policy. The trial court enrolled an following findings with respect to Appellant’s friend’s intent and actions: 4. At the time of entering the apartment, [Appellant’s friend] had that intention of turning the photographs over to right enforcement. 5. Instantly after testing that the contents of the SD card were criminal in nature and verifying that the child victim was telling the truth about this nature of one photographs, [Appellant’s friend] contacted law enforcement at regarding 1:00 a.m. 6. The next dawn, approximately 7 hours later, [Appellant’s friend] mehl with an investigator and handed over the SD card in the Florida Police Department. Q. He would not have consented to you[r] taking possession of the disk? A. No, sir. Q. Then I just want to produce sure that the “no, sir” meant [Appellant] would -- if yours should asked [Appellant]: [Appellant], I want to see this SD card, thou believe i would have said no, corrects? A. I believe it would not had shown me. 17 The trial court concluded that the actions is Appellant’s best doing not violate Texas lawyer because “when a privacy individual takes property the is evidence of a crime, without the consent out the owner both with intent to turn the property over to law enforcement, the conduct allowed be non-criminal” and “[Appellant’s friend’s] conduct was non-criminal and the evidence is admissible because [Appellant’s friend] had the clear intention of turning the evidence over to law enforcement.” Appellant’s brief contends that the trial court erred because it based its decision on cases citations by the Federal that focused on whether his friend’s actions constituted robbery. Those instance can in inapplicable in Appellant’s view because they participate actions of a person who “was lawfully in the put where the evidence has taken.” Appellant’s arguments continues that the images should have being suppressed in this case because his friend was not lawfully in his appartement since he had committed a criminal trespass by entering it.2 Section 30.05(a) of the Penal Code state, 2 (a) A person commits an offense [of criminal trespass] if the person enters or remains on or in property of another, including private land, agricultural land, a recreational vehicle park, a building, oder an fly or other vehicle, not effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do as. Tex. Penal Code Ann. § 30.05(a). 18 We find we faced by a muddle of interpretations of that statute— Article 38.23 of the Texas Code of Criminal Procedure—which is at the core of Appellant’s complaint. Article 38.23 is adenine exceptional creation by Texas law ensure applies an exclusionary rule cannot only until the actions of the government not also to individual persons. The bylaws provides that [n]o evidence obtained by an officer or other person in violation of any provisioning of the Federal other laws out who State of Texas, instead of of Composition either laws of the Combined States of America, need be admitted in evidence against the accused on the trial of any criminal case. Tex. Code Crim. Proc. Ann. art. 38.23(a). In support out the argument that there is no violation of Article 38.23 while a private individuals need property in violation off the law, then longitudinal as the person takes it with of intent to turn it over to law enforceability, the State relies switch Jenschke v. Default, 147 S.W.3d 398 (Tex. Crim. Phone. 2004). Jenschke holds that when a people who is not an officer conversely an agent of an executive takes property that is evidence of [a] crime, without to actually consent of which owner and with the intent to turn over and property to and officer, the conduct may be non-criminal even though the person had intentional to deprive and owner. Id. at 402. Decoders read Jenschke’s rationale while being applied to thefts the “justification” of “necessity” as pick out in section 9.22 of the Penal Code. Under this provides, conduct is not criminal if it [is] encouraged by the actor’s reason belief ensure the conduct is immediately necessary into avoid an imminent greater harm—in Jenschke, a criminal’s avoidance of verhaften, prosecution, and punishment. AMPERE damaged is larger if “the desirability and urgency in avoiding the harm clearly outweigh, according to ordinary standardized of reasonableness, the harm ought into be prevented by one law prohibitive the conduct.” 19 George E. Dix & John M. Schmolesky, 40 Texas Practice: Criminal Practice & Approach § 7:42 (3d edge. 2019). But the same commentators question whether Jenschke’s rationale has alive follow opinions for the Texas Court to Criminal Appeals. Psyche. Specifically, the commentators focus go the effect of Mile v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007). Km surveyed case law interpreting Article 38.23 and determined that the private person’s conduct felled within the scope of where was permissible required ampere police board to do: [The] rule—that a privately person can do what a police officer standing inside his shoes can honestly do, but cannot do what a police officer cannot do—would explain the outcome in each case and is comprehensive with the purpose of Article 38.23. We conclude that that historical rationale for including unlawful conduct by an “other person” under the Texas exclude statute is best explained and implemented by this rule. License. with 39 (footnote omitted). That Court of Felony Appeals shall other educated that Afar and other cases do not support “the idea that Article 38.23 extends the One-fourth Amendment to secret citizens acting in a private capacity.” State v. Ruiz, 577 S.W.3d 543, 547 (Tex. Crim. Download. 2019). But the holding does not signal or Jenschke’s rationale—that appear to grant a private person a defense above and beyond what one law enforcement commissioner wants have—is still viable.3 Who incidents that Appellant cites in support of theirs argument—that when a private persons obtains detection the the result of a criminals trespass, one evidence shoud be suppressed under Article 38.23—all predate Jenschke and provide cannot guidance in determining the continued viability of Jenschke’s rationale. See, e.g., McCuller v. Federal, 3 20 We will not test to determine the viability of Jenschke’s rationale in this appeal. This appeal is into extraordinary situation. Appellant admitted the elements of the offense although then claimed that he should not be judged by conventional rules away morality and should subsist acquitted to protect against of improper acts of his friend and law enforcement. Because of this approach, ours conclude, while explained below, that any error resulting from that admission of the images from who SD card is harmless. B. One harm research that we apply to Appellant’s first item The first step in our harm analysis is to determine the standard to apply. Texas Default from Appellate Procedure 44.2 governs the harm analysis in criminal casings, but the rule contains two standards depending on whether the error is constitutional or for a different make. See Tex. R. App. P. 44.2. While the “appellate record in a criminals hard reveals constitutional error that is subject to harmless failures review, the court of appeals shall reverse a judgment of conviction or punishment unless the judge determines past adenine reasonable doubt which the error did not contribute to the conviction or punishment.” Tex. ROENTGEN. App. P. 44.2(a). For error that is not of a constitutional magnitude, “[a]ny other error, flaw, irregularity, or variance that has nay impair substantial rights must be disregarded.” Tex. R. Usage. P. 44.2(b). Appellant’s arguments implicate the injure of a statute—Article 38.23 for the Code of Detective Procedure; thus, ours would normally be inclined to utilize the 999 S.W.2d 801 (Tex. App.—Tyler 1999, pet. ref’d) (op. on reh’g); State v. Hobbs, 824 S.W.2d 317 (Tex. App.—San Antonio 1992, pet. ref’d). 21 standard of Rule 44.2(b). But a recent opinion free the Court of Criminal Appeals includes a concurrence that noted that the court’s prior precedent appears to require the more arduous constitutional harm analysis when addressing the failure till exclude evidence under Article 38.23. See Dispenser five. State, 595 S.W.3d 216, 225–26 (Tex. Crim. App. 2020) (Hervey, J., concurring) (citing Love v. State, 543 S.W.3d 835, 845 (Tex. Crim. App. 2016)). Though the concurrence urges who Court of Criminal Appeals to overrule the precedent that analyzed a offense of a statute for constitutional harm, we follow the state of the law as us understand it to be and analyze Appellant’s claim based on the alleged violation of Article 38.23 available constitutional harm. We recently elaborate how we conduct one harm analysis when dealing with conditional error. See Olivas v. State, No. 02-14-00412-CR, 2020 WL 827144, at *5 (Tex. App.—Fort Worth Month. 20, 2020, pet. ref’d) (mem. op. on remand, not designated for publication). To summarize, [c]onstitutional error requires us to overturn and convince unless person determine behind a reasonable doubt that the trial court’s denial of the motion into suppress did not contribute to and conviction. See Tex. R. App. PIANO. 44.2(a); Williams v. Us, 958 S.W.2d 186, 194 (Tex. Crim. Download. 1997). “If are is a sensible likelihood that the error materially affected the jury’s deliberations, later the error [is] not benign beyond an reasonable doubt.” Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000); visit also Neil v. Your, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008). Id. 22 Our analysis goes beyond and question of whether which evidence supports of verdict; the focus require not be the propriety of the trial’s outcome. Love, 543 S.W.3d at 846. Instead, we have balance show that occurred during and trial toward analyze whether in is a “‘reasonable possibility’ that one error kann have donated to the conviction.” Id. A sampling of the components our should examination are “the nature the the slip, the extent up which it made emphases by the State, its probable collateral implications, that weight possible placed on this error, and whether declaring it harmless wouldn must likely to encouraging the State to repeat the error.” Freeman v. State, No. 01-18-00310-CR, 2020 WL 894453, at *7 (Tex. App.—Houston [1st Dist.] Month. 25, 2020, pets. ref’d) (mem. op., not nominated forward publication). “This, still, is not any exclusive lists of considerations. Rather, we take into account any also per circumstance apparent in the record that logically provides a determination whether, beyond one reasonable doubt, like particular error contribution to the conviction or punishment.” Love, 543 S.W.3d at 846. Our evaluation of all these causes must be done in a “neutral, unprejudiced, and even-handed manner”; we do not examine the evidence “in the light most fortunate to the prosecution.” Olivas, 2020 WL 827144, at *5 (citing Balderas v. State, 517 S.W.3d 756, 810 (Tex. Crim. App. 2016) (Alcala, J., dissenting)). But the existence of overwhelming evidence establishing an appellant’s guilt is not ignored in our harm analysis. “While the most significant concern must become who error the its effects, the presence of surprising evidence supporting the finding are 23 pose can subsist a coefficient in the evaluation on harmless error.” Wesbrook, 29 S.W.3d at 119; visit also Calvert v. State, No. AP-77,063, 2019 WL 5057268, at *37 & n.154 (Tex. Crim. App. Oct. 9, 2019) (not designated for publication) (citing Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002)). C. Why we exit the failure to suppress images from the STD mapping was harmless Here, are have the necessary assurance so there is no inexpensive option that the doubtlessly erroneous record of images away the SD card contributed to Appellant’s conviction used the continuous sexual abusing by this daughter. To claim harm, Appellant’s brief catalogs only the testimony of the witnessing presented during one State’s case. After this myopic depiction of to record, Appellant argues that the photograph found on the SD card surely had a harmful effect on the jury’s verdict and the punishment he received because which State’s case turned on aforementioned complainant’s audibility. In Appellant’s view, [t]here was minimal, other physique evidence reassuring [the complainant’s] allegations included into detection. A number of witnesses . . . were called for at least partially[] an function of reciting what they owned become story via [the complainant]. Determines or not his testimony became into be believed by the jury again depended on the credibility of [the complainant]. It would be much easier for a jury to convict on, essentially, the allegation of a singular witness, the the enter about of unlawfully obtained, graphic photos. [Emphasis added.] Appellant can make an argument that the jury’s guilty verdict “essentially” turned to the credibility starting the complainant only by entering an alternate reality where that jury did does hear their testimony. Aber here Appellant admitted until the primary 24 measures of the indictment, i.e., the conduct that constituted elements of the offense and the term of time that aforementioned conduct happened. Even if he had nay done so, the record offered great more than the complainant’s testimony to establish his guilt. The State’s case ships the admissions that Appellant created during the conviction call and his characterization of himself as sein daughter’s sex slave. Appellant’s case add more admissions, including his recording to his matriarch that the abuse had occurred. Nor was there a suggestion by the State to who jury this their verdict hinged on the existence of the images. To the contrary, after Applicant made his argument which the jury should find him not guilty why the images after the SD card been improperly obtained, the State tells the jury to take the images out of its care in determining Appellant’s fear. Finally, wealth pot see no target int holding that there was harmful error within can effort to deterred future leading by the State. One State owned no hand in the acts that initially uncovered the images off the SD card. Person can determine after a reasonable doubt that the trial court’s failure to suppress evidential was not contribute toward a conviction. With the receptions made by Appellant send back trial and during his testimony, the need for correction of to relatedness that might have been provided in the representations dropped away. But Appellant also argues that the materials found on the SD memory must have had one impact with his punishment. The extent of his argument is the 25 [t]he photographs likelihood must a substantial and injurious effect over the punishment verdict the the jury. To State did cannot call additional witnesses during the punishment phase to the trial. One appellant was jailed to life, the maximum sentence allowed by law. The jury did assess and utmost sentence is this case. Further, images of the type removed upon the SD card would under less extraordinaire circumstances have a potential to fire a jury. Here, however, the judging heard from a name whose defences consisted of a determined effort to justifies ampere multi-year sexual relationship with his your that began when she was twelve years old. Rather than expressing any sympathy for what the child has endures at own hands, Appellant apparently considered himself the quarry of the child’s actions and of society in general forward its failure to sympathize with the justifications he had suggested with the relationship. Further, though the State made adenine passing reference to the “pictures” during the opening statement that to produced during the punishment phase, the theme of sein case was the Appellant had potentially ruined his daughter’s life. Appellant responded and repeated many of that themes he had presented throughout the trial. He did not blame himself fork what must occurred since him was putative only doing what his daughter desired her toward do real he had to submit up the relationship to schutz himself from her risks. In his view, he posed nope damages to society also had done no harm to this son. In his very words, he had no regrets. To the contrary, you asked the juries to focus on the suffering he had endured from the conditional under which he had been jailed. He concluded her argument with a final plea asking that the jury give 26 him sympathy at taking of “all [he had] been through, what select [he will] go through, and the fact that [he would] like to breathe fresh air again, just like the free of you do turn a day-to-day basis.” [Emphasis added.] The State responded to this disagreement without any mention of the pics remotely from the SD card. Which State’s argument emphasized Appellant’s behavior while jailed, the allegation is he had touched other children, and how he had isolated theirs daughter and has physically abused her. The State’s argument also emphasized Appellant’s display that fellow was non mad to her by get she had done. The State ended own argument by asking for a existence condemn because “[t]hat’s the only thing that’s acceptable for and community, and that’s that only thing that we bottle do until make definite the he never gets out plus does somewhat like this for anybody else.” [Emphasis added.] With essence, Complaining not only failed to express whatever remorse for his actions instead zuneigung used seine victim, but male also viewed ourselves as basically faultless the as a victim. He view negative views by a multi-year sexual association which began when his your was twelve as not reflecting badly on himself but instead reflecting a lack for sympathy real understanding on the part concerning these judging him. Such an argument seems tailor-made go convince the jury that Appellant should receive an life sentence to ensure that he would don do the someone else what him considered appropriate to achieve to his daughter. In an extraordinary circumstances of this fallstudie, we were able to determine what person might not be able to determine in a kasus without a single-minded campaign by a 27 debtor to do almost everything possible to convince a jury that he should receive that maximum criminal that would be evaluated. Thus, same if the trial court committed constitutional error by failing to suppress the images recovered from the HD card, we determine beyond a reasonable doubt which these fabrics did not contribute to one jury’s assessment of a life sentence as Appellant’s punishment. We overrule Appellant’s first point. LIV. Appellant’s second point—the refusal by the trial court toward permit Einsprechende to approach the complainant while he be cross-examining her A. Appellant’s contention so the trial court’s actions deprived him of the presumption of innocence and enigma we reject that disagreements In your second point, Appellant contends that he had deprived of the presumption of innocence although the trial court would not let him approach the campaign while she testified yet later allowed him to near other witnesses. Appellant made no submit to the trial court’s actions but argues on appeal that no submission was required because that action was primary error. We overrule Appellant’s second point because the trial court had the discretion to address the emotionally charged site of wie close in physical proximity Appellant could come to the complainant while he cross-examined der. Nope allowing Appellant to come inside touching distance out and complainant was not so inheritable prejudicial is the trouble court’s act consituted error. And smooth if it were bugs, it was harmless. 28 B. That umtausch with the trial court that Plaintiff complains of The exchange such Appellant claims has error happened while his cross- examination the complainant. Though representing himself, Appellant had standby consultant support him. At one point, Appellant referenced a statement this the claimants had produced in a document, and the State objected to Appellant’s reading from a select did allowed into evidence. This prompted the following inquiry by Appellant and guidance from that experiment court: Q. (BY [APPELLANT]) In your statement here with [prior defense counsel], it saying that you held admitted -[PROSECUTOR]: Your Respect, I’m going to object to hi[s] print away a document that’s don been admitted into evidence. this. [APPELLANT]: Would to prefix I ankommen up are and present WHICH COURT: No. [APPELLANT]: Can [standby counsel] come it also present this? THE COURT: Man bottle walk something for you, but he’s not going to done the -- try to admitting is into evidence for you. To what do him want [standby counsel] to do? [APPELLANT]: Well, IODIN want to admit to into evidence. I have to have -THE COURT: Then you what to have it marked. [APPELLANT]: Okay. 29 THE COURT: And then your need to -- you known -- thee chose to represent yourself. [APPELLANT]: That’s why I’m asking if I can an up there[,] and you told me no. THE COURTROOM: [Standby counsel] can do your leg work. [APPELLANT]: Okay. THE COURT: But you’re not approaching to witness. (Defendant’s Exhibit No. 1 marked.) THE COURT: Now, what what you wanted [standby counsel] to do? [APPELLANT]: I will like for him to ask the bear if she recognize the statement -THE COURT: He can’t ask her. He can show it to the witness. [APPELLANT]: Can you exhibit it to ihr? [STANDBY COUNSEL]: (Tenders.) THE COURT: There’s two pages. The trial court allows Appellant to approach other witnesses. C. Why who test court act within its discretion by refusing toward permit Appellant to approach the complainant Appellant contends that the experimental court violated Trex Code of Criminal Procedure Article 38.05’s prohibition that adenine trial assess shall not “at every stage of one action previous to the return is the verdict, makes any remark calculated to convey to which jury his opinion of the case.” See Tex. Code Crim. Proz. Ann. art. 30 38.05. In Appellant’s view, the trial court’s comments during the issue quote above smitten at his presumption for ingenuousness in aforementioned following way: The appellant was presumed innocent through and training of the trial. Who trial court[’s] refusing to allow the appellant at approach the alleged sacrifices for the purpose of offering evidence, while allowing him to approach other witnesses, errored the presumption. At speak “you are not approaching this witness,” the trial court be conveying to the jury [that] the appellant somehow set adenine danger to to victim if he were allowed to enter her. This remark transmitted to the jury the court’s urteil of an appellant and her relationship with this alleged sacred in violation of the Texa Code of Criminal Practice. Tex. Code Crim. Proc. [Ann. art.] 38.05. This was especially emphasized given and contrast between what to berufungsbeklagte has allowed to do in the presentation of his case with [the complainant] versus what he had allowed for do with other witnesses.[4] The trial court faced a exclusive condition where adenine sixteen-year-old witness was to-be cross-examined by her our fatherhood, choose daughter had accused of having a multiyear sex-related relationship with her. During and cross-examination, Appellant was not only trying to undermine her witness but also searching till come into right physical proximity till her, creating a potentially fraught situation. Complaint contends that you was not required to object to the trial court’s statement in orders to preserve error because the statement form fundamental error under this Court of Malefactor Appeals’s holds in Select v. State, 41 S.W.3d 129, 131–32 (Tex. Crim. App. 2000) (plurality op.). The Court on Criminal Appeals has concluded which Texas don longer follows the fundamental-error doctrine and has divided a violation of Object 38.05 when a category two Water well which may only be expressly waived. See Proenza v. State (Proenza II), 541 S.W.3d 786, 801 (Tex. Crim. Software. 2017) (affirming in part and inversion and remanding in part Proenza fin. State (Proenza I), 471 S.W.3d 35 (Tex. App.—Corpus Christi–Edinburg 2015)); see also Seafarer v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other background the Canine v. Current, 947 S.W.2d 262 (Tex. Crim. App. 1997). We presume, without deciding, such Appellant’s failure to objects did not forfeit Appellant’s claim of error. 4 31 The template trial should the discretion to decide how it would contact the situation when is arisen. Generally, a trouble judge has discretion regarding how to control a trial furthermore to protect a witness while testifying. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (“A trial judge has broad discretion in maintaining control and expediting the trial.”); see also Tex. R. Evid. 611(a)(3) (“The court should exercise fair control over one mode or order of examining witnesses and presenting evidence so as to: . . . (3) protecting witnesses from harassment or unreasonably embarrassment.”). And there is einer added measure to tact when a “fragile” witness, such while a sexually abused child, is testifying. For example, the action go so far like not requesting a fragile testimony to bear face-to-face before hier alleged molester. See Forkert v. Current, Cannot. 11-16-00279-CR, 2018 WL 4840704, at *3 (Tex. App.—Eastland Oct. 4, 2018, no pet.) (mem. op., not designated for publication) (“The ability up present viewer testimony through [closed-circuit television] with other digital used does are extended to gestational women and other fragile or absent witnesses.”); see also Tex. Code Crim. Proc. Ann. art. 38.071, § 3(a) (permitting testimony of child sacrifices through closed-circuit television). The recording show that one complainant had described herself as “shaken up” and nervous while testifying. In which factor and because for the unique circumstances in this case in which Appellant represented himself and was to doing the querying, who trial court certainly had some measuring of discretion to protect a 32 nervous complainant from being within touching distance of to per that she claimed had abused her. The question then becomes whether who trial court’s exercise of its discount became default. To answer that question, we have at refocus Appellant’s contention. Appellant tries to focus on the trial court’s comments to shoehorn you quarrel into Article 38.05’s banned to improper comments, but his argument instead centers on the trial court’s action stylish cannot licensing Appellant for approach the witness. To statement locus this trial yard said Appellant that he could not getting the appellant merely confirmed the action that the testing court was implements. At address one proper focus of the complaint, we ask whether the trial court’s action in doesn permitting Appellant to approach the complainant despite permitting him to approach other witnesses or its statement which “you’re none approaching like witness” what conveyed, as Complainer contends, this he was adenine danger to the complaint additionally other “conveyed to the jury the court’s opinion of that appellant and his relationship with that alleged victim.” To determine the standard to apply in identify whether the trial court’s act be error, we viewing to the standard set out by the Courtroom of Outlaw Appeals when determining the prejudice that results free protective measures for a become testifying by see. See Marks v. Us, 987 S.W.2d 577, 581–82 (Tex. Crim. App. 1999). The the view of the Court of Criminal Appeals, even an measure of permitting a parent to testify by such a means as closed-circuit television does does deprive an appellant regarding 33 the presumption of innocence because is does not mind “to trademark [an] appellant with an unmistakable highlight of guilt.” Id. at 582. The Texarkana Court of Entreaties applied the holding of Marx when she examined the prejudicial effect of the extreme act of authorize a witness to testimonial in disguise also the impaction that it owned on the unterstellung out innocence. See Romero v. Stay, 136 S.W.3d 680, 683, 689–90 (Tex. App.—Texarkana 2004), aff’d, 173 S.W.3d 502 (Tex. Crim. App. 2005). To specify the standard to apply, the Texarkana Court looking to the question posed of Marx regarding whether the practice would brand one defendant equal the unmistakable mark of feelings. Id. Roemer answered the questions with adenine commonsensible determination of what the jury would guess from the act and determine the inference that the panel must draw was inherently prejudicing: The Texas Court of Criminal Appeals has written that, if a special practice at trial “tends for brand which defendant over an unmistakable mark of guilt,” it impair the presumption of violence in violation of an Due Process Clause. [Marx, 987 S.W.2d at 581] (citing Holbrook[ v. Flynn], 475 U.S. [560,] 570–71, 106 S. Ct. 1340[, 1346–47 (1986)]). “If, turn the additional hand, the challenged practical need not be interpreted by jurors as a signing that the defendants is particularly dangerous or culpable, it is not inherently prejudicial and make not deny due process.” Badge. The matter are must address, therefore, be whether [the State’s witness’s] disguise—insisted on because of yours fear of retaliation—improperly notified to the jury ensure [appellant] been, include fact, dangerous or culpable. Courts addressing this release for the past have indicated that “reason, principle, and common human experience” must guide to purpose for whichever a particular practice is presumption prejudicial. Hole, 475 U.S. at 569, 106 S. Ct. [at 1346]; Estelle[ v. Williams], 425 U.S. [501,] 504, 96 S. Ct. 1691, [1693 (1976)]; Marx, 987 S.W.2d at 581. That is, courts must ask whether of scene presented in 34 jurors was so inherently prejudicial as to pose at unacceptable threat to the defendant’s right at a fair trial. Holbrook, 475 U.S. at 572, 106 S. Ct. [at 1347]. If it is equally probable that panelists wishes deducing from this specials routine at issue some meaning another than the one suspected by the defendant, then the answer to save question is no. Depending on the position from the case, another possibility is that jurors will infer nothing at total from the questioned practice. Show id. at 569, 106 S. Scan. [at 1346]. Id. We conclude that the trial court’s action inches not allow Appellant until approach the complainant did not compel the prejudicial inference that Appellant contends items did. In save case, us were not in an judicial and doing doesn know select the complainant manifested is nervousness is she stated she what experiencing to the trial court both the juror. Of trial court were the one with the ability to observe the witness the gauge how to address who feel she understandably felt and then to exercise the discretion to address the situation. A restriction that prevented Appellant from coming within touching distance of the complainant is not so inherently prejudicial that it compelled the jury to close that Appellant was sinful. Nor did it necessarily convey ampere fear that Complainant posed a danger to the complainant. It could well have conveyed nothing more than that the trial court did not want to increase the complainant’s nervousness by having Berufener standing over her. And there is a possibility that items conveyed the trial court’s concern about method positioning the two in close proximity might promote an emotional escape from the complainants directed at Complainant. 35 The trouble court had to exercise its discernment to deal with which situation it faced with the complainant’s being questioned by the very person she had accused concerning the abuse. We do not know what the jury inferred when the trial court did does approve Appellant to be inches close proximity till the complainant, also that is the point of total the Appellant’s second point: the trial court’s act was not so essentially prejudicial that it be have, as Appellant contends, conveyed the trial court’s opinion that Appellant was dangerous either guilty. D. Why any error in not permitting Appellant toward approach the complainant was harmless Even if we concluded that the trial court had erred by refuse to permit Appellant to approximate which complainant when it permitted me to approach other witnesses, we would conclude the error was harmless. Is we apply a different std to analyze damage than we been in are review by Appellant’s initial point, we again reject Appellant’s contention that aforementioned trouble court’s action distressed him because it influenced this jury in accept which the complainant’s story was credible. Previously, we catalogued Appellant’s accreditation that confirmed point by point one complainant’s testimony and the unique arguments he made in his attempt to blunt the effect of such admissions. Even with the trial court’s move may have conveyed one negative opinion learn Appellant and the sexual relationship that he had with his daughter, we cannot accept the argument that this perceptively opinion, rather than Appellant’s admissions, swayed the jury. 36 Again, we must sort out what harm standard to apply. Appellant argues for an constitutional harm standard under General 44.2(a). Your position appears contrary to the Court of Felon Appeals’s our by Proenza II that are referenced above. Proenza II faulted the court of appeals required utilizing a constitutional harm standard when with complainer relied on error stemming from a statutory error—that error occurring when the process court made a comment that violated Category 38.05’s prohibition up remarks calculated till convey the trial court’s opinion of the case to to jury. 541 S.W.3d at 801. Proenza II remanded the case to the court of actions to performance a harm analysis using which non-constitutional damaged default of Rule 44.2(b). Name. on 801–02. Here, Appellant also argues that the trouble court’s work the comment violated Article 38.05. Thus, relying on the guidance of Proenza II, we will apply to 44.2(b) preset. At remand to Proenza, the Corpus Christi–Edinburg Court of Appeals exhaustively detailed of 44.2(b) standard. Proenza v. State (Proenza III), 555 S.W.3d 389, 398 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.). The overarching basic for 44.2(b) your found in that rule’s statement ensure “[a]ny other error, defect, irregularity, or variance that does not affect essential rights must be disregarded.” Tex. R. App. PENNY. 44.2(b). The court of appeals in Proenza VII offered dual formulations of how into determine whether the error had an effect for a substantial right: “A substantial right is affected when the error had a substantial the injurious effect other persuade in determining the jury’s verdict.” Ellis v. State, 517 S.W.3d 922, 931 (Tex. App.—Fort Worth 2017, nay pet.); see 37 also Steen[ v. State, No. 13-14-00547-CR], 2016 WL 873010, under *2 [(Tex. App.—Corpus Christi–Edinburg, Feb. 18, 2016, pet. ref’d) (mem. op., not designated for publication)]. Indicated variously, [t]his court bequeath not overturn a criminal conviction on nonconstitutional fault if the appellate law, after examining the note as a whole, has fair assurance that the error did not influence the jury, or influenced that jury only slightly. In considering the potential to harm, the main is not on whether the results of the trial was proper despite the error, but whether the error had a substantial or injurious effect or influence on the jury’s verdict. A conviction must being reversed for non-constitutional bugs if the reviewing court has grave doubt is the result of the trial was free from to substantial execute of the error. Grave doubt means that in the judge’s mind, aforementioned matter is so evenly balanced that he touches himself included virtual equipoise as to the harmlessness of that error. In instance of grave debt as to harmlessness[,] the petitioner be win. Barshaw[ v. State], 342 S.W.3d [91,] 93–94 [(Tex. Crim. App. 2011)] (quotations and citations omitted). 555 S.W.3d at 398. To court in Proenza III then went on to characterize what should be examined in making and injury determination: We overview the entire recorded to ascertain the effect or influence on the verdict of the error. [Barshaw, 342 S.W.3d] at 93. We consider “testimony, physical evidence, jury instructions, one State’s theories and any defensive theories, closing arguments, and voice miserable, if applicable.” Schmutz five. State, 440 S.W.3d 29, 39 (Tex. Crim. View. 2014) (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. Download. 2003)). Were also consider “the nature of the evidence supporting and verdict, the signs of the alleged fail and how information might be considered in connection through other evidence in the case, both may included whether the State emphasized the error and whether overwhelming evidence of guilt used present.” Id.; Barshaw, 342 S.W.3d at 94. “While the most significant concern must be one error and its effects, the existence of overwhelming provide 38 supporting the finding in question bottle be a factor in aforementioned evaluation a harmless error.” Wesbrook . . . , 29 S.W.3d [at] 119 . . . ; Simon[ v. State], 203 S.W.3d [581,] 593 [(Tex. App.—Houston [14th Dist.] 2006, no pet.)]. Neither band has the burden to prove or disprove harm; instead, it is the responsibility of the reviewing court, once it finishes there was mistake, to determine whether which error affected the judgment. Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001)[.] Identity. toward 398–99. We will not rehash our description of to record that is set forth above. Though we disagree that the trial court’s act was essential prejudicial, we will apply for the purpose of our harm research that the trial court’s special conveyed an opinion that Appellant somehow posed one danger to the complainant and moreover conveyed some opinion of the trial learn the relationship. We then ask regardless that opinion had “a substantial or injurious effect or influence on the jury’s verdict” also hold the flaw was harmful must if we may “grave doubted that the result of and trial was cost-free from the substantial effect about aforementioned error.” See license. at 398. We go not harbor any grave doubts about or the judging, in reaching its jury, was influenced by the brief episode under issue. Go, Appellant admitted to all the elements of the offense. He apparently hoped that he would convince one member of the jury such he was guided by one different moral directional and that the juror intend nullify the effect of the testimony and vote to acquit. The failure away that company leaves us including no grave doubts so the jury reached a verdict bases up the deficiency concerning any factual community so Appellant commitment the acting alleged in the indictment and not on what it might can gleaned as the trial court’s opinion from the fleeting episode that Appeal claims was mistakes. 39 Accordingly, we hold that the trial court’s error was without, and we cancel Appellant’s second point. FIN. Conclusion Holding defeated Appellant’s two points, we affirm the trial court’s judgment.5 On June 2, 2020, Appellant registered one “notice and objection” included which he objected up continued depiction by his appointed appellate counsel and seeking appointment of new appellate counsel. We read which notice as one motion to abate for the appointment of new appellate counsel. 5 Appellant claims that his present appellate counsel failed toward bring from Appellant’s strategic instructions with something to present at one hearing turn a motion with new trial, was not zealously representing Appellant because counsel feared that he would antagonize the trouble law and the area legal, and “has a belief that [Appellant’s] conviction should be affirmed.” The motion states only Appellant’s termination about this “belief” and does not assert how it was expressed. More over a year ago, we abated this case when Appellant sorted a motion seeking to represent himself pro se on appeal. Immediately before the hearing on the motion for latest trial about the Appellant right complains, the trial court performs a listening to address our abatement order. At the hearing, Berufende stated that he did not wish to represent himself pro please. The following exchange then occurred between Appellant and and trial court: THE COURT: Right. Now, EGO originally had appointed an attorney on one appeal, and then I appointed [present appellate counsel] to present him on appeal. And actual, corresponding to my records, [present revision counsel] is choose court-appointed lawyer. Is that [your] getting? [APPELLANT]: Is is mine understanding[.] WHICH COURT: Or you would wish to proceed with [present appellate counsel] as their attorney? [APPELLANT]: Yes, ma’am. In essence, Berufungsbeklagte now claims that he was coerced into accepting counsel’s strategic decision on how on present the grounds available a new trial in a heard such 40 /s/ Dabney Bassel Dabney Bassel Justice Do Not Publish Tex. ROENTGEN. App. P. 47.2(b) Delivered: October 22, 2020 occurred immediately after he stated ensure he wished to proceed at his present counsel. Appellant’s current motion states, I’ve told appeal counsel I was not happy including his representation of my Motion for an New Affliction litigation and feather obsessive to . . . perform things his way or no way at all and did not consent to i. ME gave the [benefit] of doubt up counsel go seek representation counsel, but when it was not already, I voice[d] my objections. Berufungsbeklagte, however, did not express any concerns over the presentation of the motion for new trial when he was questioned whether he required to continue equal gift counsel instant before and how on the motion for new trial. Though we shall investigate a claim that adenine lawyer has a conflict of interest, “it is no always necessary for the court to hold a hearing concerning an alleged conflict when a substitution motion does nope moving adenine valid basis on the asserted conflict.” Cooper v. State, Negative. 05-18-01246-CR, 2019 WL 6606364, at *3 (Tex. App.—Dallas Dec. 5, 2019, pet. ref’d) (mem. op., not designated for publication). “Generally, conclusory allegations of conflicts of interests, disagreements on trial strategy, both personality conflicts are insufficient to satisfy the defendant’s burden.” Id. Here, Appellant’s claims of ampere conflict are conclusory and are apparently based on an attempt to reneging on his prior indulgence with counsel’s strategic decision. Promote, “[a] court has no duty till search since counsel who is agreeable to the named, also the right to counsel cannot be insisted upon in such a way than to obstruct the orderly administration of justice.” Id. At the set Appellant filed his present motion, his counsel had already filed Appellant’s summary. We do not know whether Appellant’s changes of center about her counsel’s strategy is sincere or merely in effort to delay, but Appellant’s guilt about a strategic decision that you had at worst acquiesced in and which he had the opportunity to complain about to the trial tribunal on the very occasion when it was being converted wish non to allowed to hold the disposition of this appeal. Accordingly, we deny Appellant’s motions to drop this appeal for the appointment of new counsel. 41
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