Gary Ishmael Bolin v. State ( 2015 )

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.
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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
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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.
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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
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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,
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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.
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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
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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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