                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00136-CR
                            NO. 02-15-00137-CR


AARON JESS MARLAR                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
              TRIAL COURT NOS. CR14-0355, CR14-0493

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                       MEMORANDUM OPINION 1

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     In one issue, appellant Aaron Jess Marlar appeals his third-degree felony

convictions for assault against a member of his family or household and for

repeated violations of conditions of a bond in a family violence case. 2   He

     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. §§ 22.01(a)(1), (b)(2)(A), 25.072(a), (e) (West
Supp. 2015).
contends that during the hearing on the State’s petition to revoke his community

supervision for these offenses, the trial court violated his right of confrontation

under the Sixth Amendment. 3 We affirm.

                               Background Facts

      Through separate indictments, appellant was charged with assault against

a member of his family or household and with repeated violations of conditions of

a bond in a family violence case. The indictment in the assault case alleged that

he had been previously convicted of assault against a member of his family or

household. In each case, appellant pled guilty. The trial court convicted him in

each case, assessed punishment of ten years’ confinement, suspended

imposition of the sentences, and placed him on community supervision. 4

      The day after appellant’s community supervision began in each case, the

State filed a petition to revoke it.   The State alleged that he had violated a




      3
       See U.S. Const. amend. VI (stating that in “all criminal prosecutions, the
accused shall enjoy the right to . . . be confronted with the witnesses against
him”).
      4
       The clerk’s records in these appeals do not contain the orders placing
appellant on community supervision, but they contain other documents
describing his placement on community supervision. An exhibit in the reporter’s
record contains a transcript of the hearing in which appellant pled guilty to the
offenses and in which the trial court convicted him and placed him on community
supervision.


                                         2
condition by impermissibly contacting the victim of his assault. 5 The State later

amended its revocation petition twice in each case.

      At the hearing on the State’s second amended revocation petition,

appellant pled not true to the petition’s allegations. After the trial court took

judicial notice of the contents of its file, before calling any witnesses, the State

offered State’s Exhibit 1, which was a transcript of the hearing in which appellant

had pled guilty to each offense and had been placed on community supervision.

The following colloquy occurred:

            [THE STATE]: Judge, at this time, I’d like to offer State’s
      [Exhibit] 1, which is the transcript . . . from the plea.

           [DEFENSE COUNSEL]:                Your Honor, I’ll object to no
      foundation.

            THE COURT: Response, [State]?

             [THE STATE]: I could call your court reporter, Judge, but that
      would make it very difficult to have somebody report the events of
      this proceeding. We’d need to get the reporter from next door.

            THE COURT: Overruled. Admitted.


      5
       Specifically, the State’s revocation petition alleged that appellant had
violated the following condition:

             (pp) Defendant shall refrain completely from contact with . . .
      the victim of this cause, either in person, by telephone, in writing, by
      text, instant messaging, or other form of electronic communication,
      or through any other individual or means, except for the sole
      purpose of arranging for visitation with the children Defendant
      shares with [the victim]. In the event that [the victim] is not, at the
      time in question, the person with custody of the aforesaid children,
      Defendant shall not initiate or have any communication with her
      whatsoever.


                                         3
            ....

            [THE COURT:] And in relation to State’s Exhibit 1 that was
      just admitted, the court will . . . acknowledge that this is a record
      from Glenna G. Windell who is also the official court reporter of this
      court who took this transcript.

            ....

           [DEFENSE COUNSEL]: Your Honor, one more objection to
      add. Hearsay.

            THE COURT: On State’s Exhibit 1?

            [DEFENSE COUNSEL]: On State’s Exhibit 1.

            THE COURT: Overruled.

      After the admission of State’s Exhibit 1, the trial court heard testimony from

appellant’s ex-wife, R.M. (Reyna), 6 who is the victim of his assault offense. She

testified that after the trial court placed appellant on community supervision, he

contacted her by phone, through social media, and through letters. 7         Reyna

conceded that parts of these contacts concerned visitation issues but testified

that other parts concerned the relationship between her and appellant.

      During appellant’s cross-examination of Reyna, he voiced another

objection to State’s Exhibit 1. The following exchange occurred:

      6
       We use an alias to protect the victim’s anonymity. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
      7
       The trial court admitted a recording of a voice mail that appellant had left
for Reyna, a copy of a message that appellant had sent to Reyna through
Facebook, and copies of letters that appellant had sent to Reyna. In the
Facebook message, appellant told Reyna that he loved her and missed her; he
also stated that he knew that sending the message could “put [him] in prison for
10 years.”


                                         4
               [DEFENSE COUNSEL]: And, Your Honor, in thinking about
      State’s 1, I have -- I want to make an additional objection . . . . So
      I’m going to bring up a [C]onfrontation [C]lause [objection] on that
      also because [appellant] wasn’t the actual one that was doing the
      questioning and answering, and he made a statement on State’s
      1. . . .

            THE COURT: Specifically what in State’s 1 are you objecting
      to?

            [DEFENSE COUNSEL]: Well, you know, it’s basically the
      statements that are made by -- it could be statements made by
      anybody except [appellant] who was placed under oath on State’s 1.

            ....

            THE COURT: I’m going to -- so what’s your objection?

            [DEFENSE COUNSEL]: Under the [C]onfrontation [C]lause.

            THE COURT: Overruled.

      The trial court also heard testimony from other witnesses. The court found

that appellant had violated the no-contact condition of his community supervision

and heard more evidence on his punishment.           In each case, the court then

revoked the community supervision and sentenced appellant to nine years’

confinement. The court ordered the sentences to run concurrently. Appellant

brought these appeals.

                         Confrontation Clause Objection

      In his only issue, appellant contends that the trial court violated his right of

confrontation when it admitted State’s Exhibit 1. He argues that the issue of

whether a defendant enjoys the right of confrontation under the Sixth

Amendment at a revocation hearing is unsettled and that we should resolve the



                                         5
issue. Assuming without deciding that appellant preserved this complaint for our

review and that the trial court violated his right of confrontation by admitting

State’s Exhibit 1, we conclude that any such violation could not have harmed

appellant under the circumstances presented here.

      When assessing whether constitutional error, including error related to a

defendant’s right of confrontation, is harmful, we apply rule of appellate

procedure 44.2(a). Tex. R. App. P. 44.2(a); Sanders v. State, 422 S.W.3d 809,

817 (Tex. App.—Fort Worth 2014, pet. ref’d). The question is whether the trial

court’s admission of State’s Exhibit 1 over appellant’s Confrontation Clause

objection was harmless beyond a reasonable doubt.          See Tex. R. App. P.

44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).          In

applying the “harmless error” test, our primary question is whether there is a

“reasonable possibility” that the error might have contributed to the trial court’s

revocation decision. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); see also Davis v. State,

268 S.W.3d 683, 706–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (“In applying a

rule 44.2(a) harm analysis to [evidence] erroneously admitted over the

defendant’s Confrontation Clause objection, the Court of Criminal Appeals has

instructed us that if the verdict or punishment would have been the same absent

the error then the error is harmless.”).

      Appellant argues that he was harmed by the admission of State’s Exhibit 1

because it contained statements establishing that at the time of his placement on


                                           6
community supervision, Reyna did not have custody of her and appellant’s

children. 8   He argues that these statements were important to the issue of

revocation because the community supervision condition at issue stated that he

could contact Reyna only for the purpose of arranging visitation with the children

and that if Reyna did not have custody of them, he could not have any

communication with her. Appellant contends,

       Due to the wording of the sole condition of probation alleged to have
       been violated, [his] knowledge and understanding, or lack thereof, of
       who had custody of the children [was] a key element the State [was
       required to] prove on both counts. . . .

              ....

            . . . [T]he alleged violations of probation by [a]ppellant hinge
       on what he knew and understood: Did [a]ppellant know [Reyna] did
       not have temporary custody of the children after December 17,
       2014?

       For two reasons, we conclude that appellant could not have been harmed

on this theory by the admission of State’s Exhibit 1.          First, as appellant

recognizes in his brief, his knowledge of the custody status of the children at the

time of his placement on community supervision was established during the

       8
       For example, State’s Exhibit 1 contains the following statement to
appellant by a prosecutor:

       [Reyna] does not have control of the kids right now, they’re not in
       her custody, they’re not in her care. So there’s absolutely no reason
       at all whatsoever for you to be contacting her in any manner in
       person, by phone, by email, by IM, any other sort of electronic
       communication any way, any form at all. And that’s what the
       conditions lay out. Okay? You need to move on with your life, let
       her move on with hers, and that’s it.


                                        7
revocation hearing by evidence other than State’s Exhibit 1. Cf. Sandone v.

State, 394 S.W.3d 788, 794 (Tex. App.—Fort Worth 2013, no pet.) (“The

improper admission of evidence is harmless if the same or similar evidence is

admitted without objection at another point in the trial.”); cf. also Sanders, 422

S.W.3d at 817–18 (concluding that any error in the admission of a statement in

violation of the defendant’s right to confrontation was harmless in view of other

uncontroverted, unobjected-to evidence that established the same facts). Reyna

testified that prior to the date that appellant’s community supervision began, her

parents temporarily had custody of the children, and she informed appellant of

this fact. She later explained that appellant had attended the custody hearing in

which her parents were granted temporary custody and that he had signed an

agreement supporting that result.      Reyna stated that prior to appellant’s

placement on community supervision, a custody order had stated that he was to

arrange visitation through her parents, not through her. Reyna’s father confirmed

in his testimony that before being placed on community supervision, appellant

knew that Reyna did not have custody of the children because he “agreed to the

orders” concerning the children’s custody.

      Second, the record contains abundant evidence of contacts made by

appellant to Reyna that had nothing to do with the children’s custody and

therefore unquestionably violated the condition at issue. On the day after his

community supervision began, appellant wrote the following message to Reyna

through Facebook:


                                        8
      So this is really how u want it to be[?] What the da said was really
      what u wanted[?] U want absolute nothing to do with me ever[?] I
      guess u have moved on and u are over me[?] I am having a really
      hard time with this . . . . I know this message could put me in prison
      for 10 yrs and [if] that’s what u feel u need to do so be it, I just can’t
      believe u really want this . . . .

Appellant’s letters to Reyna also concerned several matters unrelated to the

children’s custody or visitation, including his disagreement with Reyna’s decision

to report him for previously contacting her.      Appellant’s communications with

Reyna that had no relation to the children’s custody or visitation matters renders

his understanding of the custody status of the children superfluous to the trial

court’s determination to revoke his community supervision. See Howard v. State,

706 S.W.2d 168, 170 (Tex. App.—Fort Worth 1986, pet. ref’d) (stating that

community supervision may be revoked on proof of only one violation of the

conditions).

      Thus, assuming, without deciding, that the trial court violated appellant's

right of confrontation by admitting State’s Exhibit 1, we hold beyond a reasonable

doubt that the error could not have contributed to the trial court’s decision to

revoke his community supervision. See Tex. R. App. P. 44.2(a). We overrule

appellant’s only issue.




                                          9
                               Conclusion

      Having overruled appellant’s only issue, we affirm the trial court’s

judgments.


                                             /s/ Terrie Livingston

                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 3, 2016




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