                                                           PD-0518-15 & PD-0519-15
        PD-0518&0519-15                                COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 5/5/2015 10:18:16 AM
                                                         Accepted 5/6/2015 10:52:03 AM
                                                                         ABEL ACOSTA
                            In the                                               CLERK
              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


May 6, 2015
                 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

Presiding Judge at Trial:
             Judge Michael McSpadden
             209th District Court
             Harris County, Texas
             1201 Franklin
             Houston, Texas 77002




                                        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

APPENDIX ............................................................................................... 10

Gary Ishmael Bolin vs. The State of Texas .............................................. A1




                                                    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).

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

                                         6
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

prosecutor not to bother discussing deferred adjudication probation and later,

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



                                         7
       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 Garrett

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




                                      9
                                    APPENDIX


Gary Ishmael Bolin vs. The State of Texas .............................................. A1




                                          10
Affirmed and Memorandum Opinion filed March 19, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00521-CR
                              NO. 14-14-00522-CR

                     GARY ISHMAEL BOLIN, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 209th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1377493 & 1377494

                 MEMORANDUM                      OPINION


      Appellant Gary Ishmael Bolin appeals his convictions for aggravated
assault–bodily injury and aggravated assault with a deadly weapon. See Tex. Penal
Code Ann. § 22.01(a)(1), (2) (West 2011). In a single issue appellant argues the
trial court abused its discretion by allowing the State to produce victim-impact
evidence at a hearing before the court entered a finding of guilt. Finding appellant
did not preserve error, and was not harmed by the introduction of victim-impact

                                                                                       A1
evidence, we affirm.

                                       BACKGROUND

       After being admonished by the trial court, appellant pleaded guilty to
aggravated assault with a deadly weapon and aggravated assault–bodily injury.
Prior to hearing testimony, the trial court found, based on appellant’s plea,
sufficient evidence to find him guilty, but deferred a finding of guilt to permit
appellant to stay out on bond until preparation of the presentence investigation
report (PSI).1

       Appellant was the landlord for a business called RigMinder, a software and
hardware monitoring company that monitors operations of drilling rigs. The
complainant, Greg Ward, was the owner of RigMinder. The complainant testified
that he had a lease-purchase agreement with appellant, which permitted him to
purchase the property after a certain period of time. The complainant attempted to
exercise his right to purchase, but appellant was not willing to sell the property.
Appellant notified the complainant that his business would be evicted after the
complainant exercised his option to purchase. In response to the eviction notice,
the complainant filed a civil suit. On February 14, 2013, appellant walked into the
complainant’s office and shot him in the face. At the hearing the complainant
described the lengthy procedures he endured to rebuild his face and to recover
from the gunshot wound.

       The complainant’s wife described the impact of appellant’s actions on her
family. She testified that when the complainant first left the hospital they were
afraid to leave the house for fear that appellant would try to hurt the complainant

       1
        The record reflects that appellant also agreed to waive any right to appeal. Appellant’s
waiver of the right to appeal is not effective because there was no agreed recommendation as to
punishment. See Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012).

                                               2
again or hurt one of his children. At a certain point appellant was placed on an
ankle monitor while out on bond, which made the complainant’s family feel safe in
leaving their house. When the ankle monitor was removed the complainant’s son
moved from Austin to live with the complainant and his wife.

      Marshal Ward, the complainant’s son, testified that after appellant shot his
father he “gave up a pretty hopeful and successful career in real estate in Austin,
Texas” to move closer to his family after appellant’s ankle monitor was removed.
He testified that his entire family is fearful for their lives. After Marshal’s
testimony, the following conversation between the court and the attorneys occurred
at the bench:

      THE COURT: I have to make a decision and it’s for the record that
      I’m disregarding Marshal’s testimony concerning how it affected him.
      MS. BUESE [the prosecutor]: In that case, Judge, I will send them a
      quick email and I will have them work on it when we have Kyle who
      was actually present.
      THE COURT: Don’t ask him that. I don’t want to go through two
      witnesses saying I’m going to disregard their testimony because of the
      question ask[ed].
      MS. BUESE: This witness was present at the office when —
      THE COURT: That’s fine. You can go into that, but I’m talking about
      specifically how it has affected him.
      MS. BUESE: Okay.
      THE COURT: 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. We will take another short break.

      After the break, Kyle Ward, the complainant’s other son, testified that he
was living near his father’s office on the day the complainant was shot. He
witnessed the aftermath of the shooting and was the first person to inform the
complainant’s wife of the shooting. Despite the court’s earlier warning, the

                                         3
prosecutor asked Kyle how appellant’s actions affected him. Kyle answered that he
was affected emotionally and physically, and was very angry.

      Appellant did not object to any of the witnesses’ testimony as to how
appellant’s actions affected them.

      The first hearing was continued until after preparation of the PSI. At the
continuation of the hearing, the trial court took judicial notice of the PSI and the
pretrial file. The PSI contained written statements of the witnesses who had
testified in the previous hearing. At the conclusion of the second hearing the trial
court found appellant guilty and sentenced him to confinement for 20 years in the
aggravated assault with a deadly weapon charge, and five years for the aggravated
assault charge with the sentences to run concurrently.

                    ADMISSION OF VICTIM-IMPACT TESTIMONY

      In a single issue appellant argues the trial court abused its discretion by
allowing the State to produce victim-impact evidence at a hearing before the court
entered a finding of guilt.

      We review the trial court’s ruling as to the admissibility of evidence under
an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000). Victim-impact evidence “may be admissible at the punishment
phase when that evidence has some bearing on the defendant’s personal
responsibility or moral culpability.” Espinosa v. State, 194 S.W.3d 703, 711 (Tex.
App.—Houston [14th Dist.] 2006, no pet.); see also Ford v. State, 919 S.W.2d
107, 115–16 (Tex. Crim. App. 1996) (allowing victim-impact evidence in capital
murder case when jury was required to answer special issue asking about
defendant’s    “personal      moral   culpability”   and,   thus,   defendant’s   moral
blameworthiness and culpability were relevant issues at punishment). Victim-


                                            4
impact testimony is irrelevant at the guilt-innocence phase of a trial because it does
not tend to make more or less probable the existence of any fact of consequence
with respect to guilt or innocence. Miller-El v. State, 782 S.W.2d 892, 895 (Tex.
Crim. App. 1990); Love v. State, 199 S.W.3d 447, 456–57 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d).

       Appellant failed to preserve error with regard to the State’s production of
victim-impact evidence. Even if appellant preserved error, the record does not
reflect that appellant was harmed by the admission of victim-impact evidence.

       To preserve a complaint regarding the erroneous admission of victim-impact
evidence for appellate review, the defendant must object on the ground that the
evidence constitutes impermissible victim-impact evidence. Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009); Tex. R. App. P. 33.1.

       In this case, appellant failed to preserve error by failing to object to the
prosecutor’s questions. The prosecutor asked Marshal Ward to tell the court how
appellant’s actions impacted him. Marshal responded with a description of the
emotional and financial effects of appellant’s actions. Appellant did not object to
the prosecutor’s question or Marshal’s answer.

       The trial court, sua sponte, requested a discussion at the bench with the
prosecutor and defense counsel. The court specifically stated it would disregard
Marshal’s testimony “concerning how it affected him.” The court admonished the
prosecutor not to ask the witnesses how appellant’s actions affected them, and
stated it would disregard their testimony because of the question that was asked.
Despite the court’s admonition, the prosecutor also asked Kyle Ward how
appellant’s actions affected him. Appellant again did not object.

       Even if appellant had properly preserved his complaint that the testimony


                                          5
was inadmissible victim-impact evidence, appellant was not harmed because (1)
the trial court expressly stated that it would disregard the victim-impact evidence;
and (2) the plea hearing and subsequent sentencing were not a bifurcated trial.

      The erroneous admission of evidence is nonconstitutional error; therefore,
we analyze it to determine whether the error affected a substantial right of the
defendant. Tex. R. App. P. 44.2(b); see also Gray v. State, 159 S.W.3d 95, 97–98
(Tex. Crim. App. 2005). A substantial right is affected when the error has a
“substantial and injurious effect or influence in determining the jury’s verdict.”
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or
only a slight influence on the verdict, the error was harmless. See Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      Victim-impact testimony is irrelevant at the guilt-innocence phase because it
does not tend to make more or less probable the existence of any fact of
consequence with respect to guilt or innocence. Love, 199 S.W.3d at 456–57. The
trial court specifically stated it would disregard the improper testimony. Therefore,
we cannot say that the improper admission of victim-impact evidence had an
influence on the trial court’s finding of guilt based on appellant’s plea.

      The underlying proceeding was not bifurcated into a guilt-innocence phase
and punishment phase. The trial court accepted appellant’s guilty plea and ordered
a PSI prepared. The State introduced live testimony in advance of preparation of
the PSI. When a defendant waives trial by jury and enters a plea of guilty before
the court to a non-capital offense, the proceedings become a unitary trial, “that is
the issues of guilt and punishment are submitted at the same time.” Barfield v.
State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001). These issues cannot be
separated. Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet.
ref’d); State v. Kersh, 2 S.W.3d 636, 638 (Tex. App.—Houston [14th Dist.] 1999,

                                           6
no pet.).

      Given the nature of the unitary proceeding and the trial court’s express
statement that it would disregard any victim-impact evidence, we conclude that the
admission of improper victim-impact evidence did not have a substantial and
injurious effect or influence in determining the trial court’s finding of guilt. See
Tex. R. App. P. 44.2(b). We overrule appellant’s sole issue.

      We affirm the trial court’s judgment.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                            7
                      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
