                                                                             ACCEPTED
                                                                        14-14-00521-CR
                                                          FOURTEENTH COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   1/14/2015 4:55:06 PM
                                                                    CHRISTOPHER PRINE

Nos. 14-14-00521-CR & 14-14-00522-CR                                             CLERK



                  In the
           Court of Appeals                            FILED IN
                 For the                        14th COURT OF APPEALS
                                                   HOUSTON, TEXAS
      Fourteenth District of Texas
                                                1/14/2015 4:55:06 PM
               At Houston
                                                CHRISTOPHER A. PRINE
                                              Clerk

      Nos. 1377493 & 1377494
        In the 209th District Court
         Of Harris County, Texas
         
       GARY ISHMAEL BOLIN
                Appellant
                   v.
       THE STATE OF TEXAS
                 Appellee
         
       State’s Appellate Brief
         

                                      DEVON ANDERSON
                                      District Attorney
                                      Harris County, Texas

                                      ALLISON BUESE
                                      Assistant District Attorney
                                      Harris County, Texas

                                      CLINTON A. MORGAN
                                      Assistant District Attorney
                                      Harris County, Texas
                                      State Bar No. 24071454
                                      morgan_clinton@dao.hctx.net

                                      1201 Franklin, Suite 600
                                      Houston, Texas 77002
                                      Tel: (713) 755-5826
                                      FAX: (713) 755-5809

                                      Counsel for the Appellee

       Oral Argument Not Requested
                   Statement Regarding Oral Argument

      The appellant requested oral argument, though he gave no particular

reason why. The State believes the briefs in this case adequately apprise this

Court of the issues and the law, and any marginal benefit from oral argument

does not justify the considerable amount of time that preparation for oral

argument requires of the parties and the Court. Therefore, the State does not

request oral argument.




                                      i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Allison Buese
            — Assistant District Attorney at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Gary Ishmael Bolin

Counsel for the Appellant:

      Scott Pope, Jules Johnson & Frances Bourliot
            — Counsel at trial

      Casey Garrett
           — Counsel on appeal

Trial Judge:

      Michael McSpadden
            Presiding judge




                                       ii
                                           Table of Contents

                                                                                                          Page

Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ..................................................................................... iv
Statement of the Case ................................................................................... 1
Statement of Facts ......................................................................................... 1
A Note on the Appellant’s Right of Appeal ............................................... 3
Reply to the Appellant’s Sole Point of Error
   A bench trial is a unitary proceeding, thus the trial court did not err in
   hearing punishment evidence prior to a finding of guilt. ........................................ 3
Conclusion ...................................................................................................... 5
Certificate of Compliance and Service ....................................................... 6




                                                        iii
                                                 Index of Authorities



Cases
Barfield v. State
  63 S.W.3d 446 (Tex. Crim. App. 2001) ............................................................................. 4
Lopez v. State
  96 S.W.3d 406 (Tex. App.—
  Austin 2002, pet. ref’d) .......................................................................................................... 4
Washington v. State
 363 S.W.3d 589 (Tex. Crim. App. 2012) .......................................................................... 3




                                                                  iv
To the Honorable Court of Appeals:


                                 Statement of the Case

       The appellant was indicted on two charges of aggravated assault. (1 CR

15; 2 CR 15).1 The appellant waived a jury trial and entered a plea of guilty

without an agreed recommendation from the State. (1 CR 128-132; 2 CR 76-

80; 2 RR 8-11). After hearing from witnesses and receiving a pre-sentence

investigation report, the trial court found the appellant guilty and sentenced

him to concurrent sentences of twenty and five years’ confinement. (1 CR 137;

2 CR 85). The appellant filed timely notices of appeal. (1 CR 140; 2 CR 88).

Prior to the finding of guilt and the assessment of punishment, the trial court

certified that the appellant had waived his right of appeal. (1 CR 134; 2 CR 82).


                                   Statement of Facts

       Greg Ward was a business owner whose company leased a building from

the appellant under a lease-purchase agreement. (2 CR 32). When Ward’s

company sent notice of its intent to purchase the property, the appellant

started eviction proceedings. (2 RR 32-33). Ward’s company responded by




1 For ease of citation, the State will refer to the two clerk’s records in this case as though
they were sequential volumes. The record for cause 1377493 (14-14-00521-CR) will be 1
CR, and the record for cause 1377494 (14-14-005220CR) will be 2 CR.
                                              1
filing a lawsuit. (2 RR 32). For several months after that, things calmed down

between the parties. (2 RR 34).

      On Valentine’s Day, 2013, the appellant came to the building to give

roses to the female employees as he did every Valentine’s Day. (2 RR 14-15).

The appellant was friendly with the staff and even joked around with one of

them. (2 RR 15). The appellant asked the office manager, Jane Foley, where to

find a particular female employee, and Foley said that her office was upstairs.

(2 RR 15-16). The appellant walked off in that direction.

      Ward was in his office, typing, with his attention focused on the

keyboard. (2 RR 35). Two roses suddenly landed on his desk next to him; Ward

reached for them, thinking that it was an employee playing a practical joke on

him. (2 RR 35). As he reached for the roses, his chair swiveled around and

Ward saw the appellant. (2 RR 35). The appellant pulled out a gun and shot

Ward in the face. (2 RR 35).

      Evan Gooch, an engineer with the company, was working in the office

next door when he heard a loud noise from Ward’s office. (2 RR 24). Gooch

walked into Ward’s office and saw the appellant holding a smoking gun. (2 RR

24). The appellant pointed the gun at Gooch’s face. (2 RR 24). Foley came into

Ward’s office to investigate the noise and saw the appellant pointing a gun at

Gooch. (2 RR 16). She asked him what he was doing. (2 RR 16). The appellant
                                       2
lowered the gun and calmly walked out of the building without saying

anything. (2 RR 16).


                  A Note on the Appellant’s Right of Appeal

      The trial court certified that the appellant had waived his right of appeal

in this case. (1 CR 134; 2 CR 82). Both of those certifications were dated April

22, 2014, but the trial court did not make a finding of guilt and assess

punishment until June 27, 2014. (1 CR 137; 2 CR 85; see, generally 3 RR). As

the appellant points out, when a defendant enters an open plea and waives his

right of appeal prior to a finding of guilt and assessment of punishment, that

waiver is not valid. (Appellant’s Brief at 7-8 (citing Washington v. State, 363

S.W.3d 589, 590 (Tex. Crim. App. 2012)). Correctly understood, the appellant

has a right of appeal.


                    Reply to the Appellant’s Sole Point of Error


A bench trial is a unitary proceeding, thus the trial court did not err in
hearing punishment evidence prior to a finding of guilt.

      The appellant’s only complaint is that the trial court heard victim-

impact testimony prior to a finding of guilt. (Appellant’s Brief at 7-9). The

appellant believes that this form was irregular. However, bench trials are

unitary proceedings without separate punishment hearings. Barfield v. State,

                                       3
63 S.W.3d 446, 449-50 (Tex. Crim. App. 2001). In a bench trial, all the evidence

is admitted in a single proceeding, followed by simultaneous findings

regarding guilt and punishment, exactly as occurred in this case. See ibid.

(“[T]he decision of the court in a unitary trial is not fixed until it renders

judgment on guilt and punishment after all the evidence and arguments have

been heard.”); Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet.

ref’d) (Onion, J.) (in bench trial, guilt and punishment “cannot be separated”).

Thus the trial court did not err in its conduct of this trial and the appellant’s

point should be overruled.




                                       4
                                 Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas


                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  Texas Bar No. 24071454




                                       5
                     Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting function, the

portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a

word count contains 659 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Casey Garrett
      Casey.garrett@sbcglobal.net



                                                 /s/ C.A. Morgan
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Texas Bar No. 24071454


Date: January 14, 2015




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