 PD-0518&0519-15
                                                        May 4, 2015



                      In the
        Court of Criminal Appeals of Texas

 Cause Nos. 14-14-00521-CR & 14-14-00522-CR
                        In the
Court of Appeals for the Fourteenth District of Texas
                     at Houston

          Cause Nos. 1377493 & 1377494
             In the 209th District Court
              Of Harris County, Texas


             GARY ISHMAEL BOLIN
                   Appellant

                         v.

             THE STATE OF TEXAS
                   Appellee


  PETITION FOR DISCRETIONARY REVIEW



                                Casey Garrett
                                Texas Bar No. 00787197
                                1214 Heights Blvd.
                                Houston, Texas 77008
                                713-228-3800
                  IDENTITY OF PARTIES AND COUNSEL

Appellant: Gary Ishmael Bolin

Counsel for Appellant at Trial:

              Mr. Scott Pope, Texas Bar No. 24032959
              Mr. Jules Johnson, Texas Bar No. 24041199
              Public Defender’s Office
              1201 Franklin, 13th Floor
              Houston, Texas 77002
              713-368-0016

Counsel for Appellant on Appeal:

              Casey Garrett
              1214 Heights Boulevard
              Houston, Texas 77008
              Texas Bar No. 00787197
              713-228-3800

Counsel for the State at Trial:

              Allison Buese
              Assistant District Attorney
              Texas Bar No. 24061990
              1201 Franklin Street, Suite 600
              Houston, Texas 77002
              713-755-6881

Counsel for the State on Appeal:

              Harris County District Attorney’s Office
              Appellate Division
              1201 Franklin, Suite 600
              Houston, Texas 77002
              (713) 755-5800




                                        2
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................. 2

TABLE OF CONTENTS ............................................................................ 3

INDEX OF AUTHORITIES ....................................................................... 4

STATEMENT REGARDING ORAL ARGUMENT ................................. 5

STATEMENT OF THE CASE ................................................................... 5

STATEMENT OF PROCEDURAL HISTORY ......................................... 5

QUESTION PRESENTED FOR REVIEW ................................................ 6

REASONS FOR REVIEW ......................................................................... 6

PRAYER ..................................................................................................... 8

CERTIFICATE OF SERVICE.................................................................... 9




                                                    3
                                   INDEX OF AUTHORITIES



Cases

Espinosa v. State, 194 S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.]
 2006, no pet.) ............................................................................................... 8

Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) ................. 8

Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991) ............................ 7

Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012) ....... 7




                                                       4
            STATEMENT REGARDING ORAL ARGUMENT

      Mr. Bolin does not request oral argument.

                      STATEMENT OF THE CASE

      Mr. Bolin was charged by indictment in two separate cases with the

felony offenses of aggravated assault, one involving serious bodily injury

and one involving imminent fear of bodily injury or death. Both indictments

included a charge on using a exhibiting a deadly weapon, namely, a firearm

(C.R. 15). Mr. Bolin pled guilty without an agreed recommendation (C.R.

129). Following a hearing in front of the judge, the court assessed

punishment at twenty years confinement in the institutional division of the

Texas Department of Criminal Justice (C.R.137).



              STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals filed a memorandum opinion affirming the

conviction on March 19, 2015. No motion for rehearing was filed. Pursuant

to Rule 68.2 of the Texas Rules of Appellate Procedure, this Petition for

Discretionary Review should be filed thirty days after the day the court of

appeals filed its opinion. An extension of time has been filed with this

petition.



                                     5
                  QUESTION PRESENTED FOR REVIEW

          If the trial court improperly admits evidence of victim imact at a
          hearing before the court has entered a finding of guilt, should the
          court of appeals remand for a new trial?


                           REASONS FOR REVIEW

             The decision of the court of appeals conflicts with
             applicable decisions of the Court of Criminal Appeals.


                 APPELLANT’S QUESTION FOR REVIEW

          If the trial court improperly admits evidence of victim imact at a
          hearing before the court has entered a finding of guilt, should the
          court of appeals remand for a new trial?


The record includes an apparent waiver of Mr. Bolin’s right to appeal. However,

the court accepted Mr. Bolin’s plea and waiver prior to his finding of guilt, before

sentencing, and without an agreement on punishment (C.R. 131). When a

defendant waives his right to appeal before sentencing and without an agreement

on punishment, the waiver is not valid. Washington v. State, 363 S.W.3d 589,

589-90 (Tex. Crim. App. 2012).

      Outside the context of homicide cases, victim-impact testimony is generally

defined as evidence regarding the physical or psychological effects of a crime on

victims themselves. See Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991).


                                         6
Victim-impact evidence may include physical, psychological, or economic effects

of crime on a victim or a victim’s family. Espinosa v. State, 194 S.W.3d 703, 711

(Tex. App.—Houston [14th Dist.] 2006, no pet.). Although it may be admissible

curing the punishment stage, such evidence is generally inadmissible during the

guilt phase because it does not have the tendency to make more or less probable

the existence of any fact of consequence with respect to guilt. See Miller-El v.

State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990).

       Both Pamela Ward and Marshall Ward, the wife and son of the complainant

in this case, testified at length prior to a finding of guilt about the impact of Mr.

Bolin’s actions on them and their families. (R.R.2 – 50-95). Marshall Ward was

not even present on the day of the event (R.R.2 – 92), yet the prosecutor asked him

specifically how the events affected him. Even the judge considered the testimony

inadmissible, remarking, “we are talking about reversible error and I think the last

thing in the world your family wants is to do this thing all over again (R.R.2 – 92-

93). The prosecutor disregarded the court’s comments, asking the next witness,

Kyle Ward, “how has the defendant’s actions affected you?” (R.R.2 – 97). The

witness responded, “they have affected me emotionally and physically. I was very

angry, but I knew I couldn’t let my anger get the better of me.” (R.R.2 – 97).

       Despite the fact that the judge knew the victim-impact evidence was

inadmissible and should not have been considered, he was clearly affected by this

testimony. During sentencing, after making a finding of guilt, he told the




                                         7
prosecutor not to bother discussing deferred adjudication probation and later,

during sentencing, remarked “we are lucky Mr. Ward is with us today.”

       The court of appeals affirmed Mr. Bolin’s conviction because Mr. Bolin did

not have a bifurcated trial. This statement ignores Mr. Bolin’s rights to a finding of

a guilt separate from a punishment decision under the Penal Code and the Code of

Criminal Procedure.




                                     PRAYER

       Appellant respectfully prays this Honorable Court to grant his petition

for discretionary review.



                                                  Respectfully submitted,

                                                  /s/ Casey Garrett



                                                  Casey Garrett
                                                  Texas Bar No. 00787197
                                                  1214 Heights Blvd.
                                                  Houston, Texas 77008
                                                  713-228-3800




                                          8
                       CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent

through the e-file system to the following party:

Harris County District Attorney’s Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002



                                             /s/ Casey Garrettt

                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             1214 Heights Blvd.
                                             Houston, Texas 77008
                                             713-228-3800




                                      9
                      In the
        Court of Criminal Appeals of Texas

 Cause Nos. 14-14-00521-CR & 14-14-00522-CR
                        In the
Court of Appeals for the Fourteenth District of Texas
                     at Houston


             GARY ISHMAEL BOLIN
                   Appellant

                         v.

             THE STATE OF TEXAS
                   Appellee


        CERTIFICATE OF COMPLIANCE



                                Casey Garrett
                                Texas Bar No. 00787197
                                1214 Heights Blvd.
                                Houston, Texas 77008
                                713-228-3800
      This is the certify that the Petition for Discretionary Review filed in

the above-numbered cause has 1,065 words in compliance with Rule 9 of the

Texas Rules of Appellate Procedure.




                                              Casey Garrett
                                              Texas Bar No. 00787197
                                              1214 Heights Blvd.
                                              Houston, Texas 77008
                                              713-228-3800
