Bolin, Gary Ishmael ( 2015 )

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
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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
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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
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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.
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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).
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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
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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
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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
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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