Kerry Bollman v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-061-CR
KERRY BOLLMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Kerry Bollman appeals his conviction for arson of a habitation.2
In two points, he contends that the trial court erred by overruling his objection
1
… See Tex. R. App. P. 47.4.
2
… Arson of a habitation is a first degree felony offense that carries a
punishment range of five to ninety-nine years’ confinement. See Tex. Penal
Code Ann. §§ 12.32(a), 28.02(d)(2) (Vernon 2003 and Supp. 2008).
to extraneous offense testimony and by granting the State’s motion to
cumulate his sentences.3 We reform, and as reformed, affirm the trial court’s
judgment.
Background Facts
In January 2006, a Denton County grand jury indicted appellant for
committing arson of his ex-wife’s house. Five months later, appellant entered
into a plea bargain with the State in which he agreed to be placed on deferred
adjudication community supervision for eight years and abide by certain
conditions.
In April 2007, the State filed a motion to proceed with the adjudication
of appellant’s guilt. In September 2007, the State filed a “Motion for
Cumulative Sentences.” 4 In December 2007, the State filed its second
amended motion to proceed with the adjudication of appellant’s guilt, asserting
3
… In the table of contents portion of appellant’s brief, he states that his
second point of error concerns an alleged failure of the trial court to “instruct
the jury . . . that it could not consider unadjudicated extraneous offenses.”
However, in the argument portion of appellant’s brief, his second point of error
regards cumulation; also, no jury was impaneled in appellant’s case. For these
reasons, we will address sentence cumulation as appellant’s second point.
4
… The State’s motion, filed pursuant to article 42.08 of the code of
criminal procedure, gave appellant notice “of the State’s intent for a sentence
on the aforementioned case and cause numbers,” but it did not refer to any
such cases or cause numbers specifically. See Tex. Code Crim. Proc. Ann. art.
42.08 (Vernon 2006).
2
that appellant violated the conditions of his deferred adjudication order by
(among other acts) committing several new offenses, failing to pay child
support, and failing to complete his community service obligations. 5
On January 17, 2008, the trial court commenced its hearing on the
State’s motion to adjudicate.6 The evidence presented at the hearing indicated
that appellant understood the terms of his community supervision and that he
regularly met with his probation officer but that he had not completed any of
his community service obligations, that he had not paid child support as
required, and that he had committed several further offenses.7 Specifically,
appellant’s ex-wife testified that in April 2007, appellant violated the terms of
a protective order that had been issued during their divorce proceedings. 8
5
… The State proceeded with the second amended motion to adjudicate
appellant’s guilt.
6
… Appellant has not challenged the sufficiency of the evidence
supporting the findings that the trial court used to grant the State’s motion and
adjudicate him guilty. For this reason, we will not detail all of the evidence
submitted at the hearing on the State’s motion. Instead, we will only include
a brief summary of the evidence presented that is relevant to the points raised
in this appeal.
7
… Testimony also indicated that appellant failed to make payments on
fines and court costs as his deferred adjudication order required. However, the
trial court did not revoke appellant’s deferred adjudication on these grounds
because it found that appellant had no ability to make the payments.
8
… Violation of a protective order is typically a Class A misdemeanor. See
Tex. Penal Code Ann. § 25.07(g) (Vernon Supp. 2008). Appellant’s protective
3
Also, evidence indicated that in May 2007, appellant, who had been
drinking, went to his father’s house. When his father arrived at the house,
appellant pointed a knife at his own chest as if he were going to stab himself.
He then waved the knife toward his father, and his father called the police.
Officers entered the house with their weapons drawn, and appellant told them
to “leave him alone.” The officers told appellant to put the knife down, but he
refused to do so and he told the officers to “shoot him and that someone was
going to die.” Appellant pointed the knife at himself and at the officers, and
the officers sprayed him with pepper spray.9 After appellant still refused to
drop the knife, an officer fired a bean bag shotgun three times at appellant.
After the officers told appellant they would “taze” him, appellant eventually
dropped the knife.10
Finally, the evidence established that in August 2007, while being
released from a hospital after falling in his jail cell and injuring his wrist and his
ribs, appellant choked a uniformed Denton County detention officer as the
order prohibited him from communicating with his ex-wife in a threatening or
harassing manner. Appellant’s ex-wife testified that he made harassing phone
calls to her and that during one of those calls, he threatened to kill her.
9
… Appellant denied pointing the knife at his father or the officers.
10
… In the State’s motion to adjudicate, these events were described as
deadly conduct and assault of a public servant.
4
officer placed him in a van.11 Appellant attempted to explain this event by
testifying that he had an adverse reaction to pain pills given to him in the
hospital and by calling several witnesses who testified that he previously had
such reactions to pain medicine. The detention officer testified that he had to
go to therapy for pain in his arm caused by his fall to the ground after appellant
choked him.
On February 5, 2008, after the parties rested and counsel for both sides
presented closing arguments, the trial court adjudicated appellant guilty of the
arson charge and assessed punishment at forty years’ confinement. A week
later, the court held a brief hearing related to appellant’s sentencing. At the
hearing, the State noted that it had filed a motion to cumulate appellant’s
sentences and asked the trial court to order that appellant’s arson sentence run
“consecutive to any other sentence [appellant] may receive” in cases he had
pending in three counties “in the event that he receive[d] a sentence” in those
cases. The court granted the State’s motion and formally sentenced appellant.
That same day, the court entered a judgment reflecting the decisions it had
made. Appellant filed his notice of this appeal.
11
… These acts were described in the State’s motion as assault on a
public servant and attempted escape.
5
Admission of Extraneous Offense Testimony
In his first point, appellant contends that the trial court erroneously
admitted testimony concerning an extraneous offense. Specifically, appellant
complains about a portion of his former father-in-law’s testimony about him, in
which the following colloquy occurred:
[STATE]: You guys have had some ordeals over the
years; is that fair to say?
[WITNESS]: Yes, that’s fair.
[STATE]: Did you guys ever get into it physically?
[DEFENSE COUNSEL]: Objection, relevance, Your Honor.
[STATE]: I’ll be brief and then there is a point.
THE COURT: Overruled.
[STATE]: Did y’all get into it a couple of times
physically?
[WITNESS]: Just once, really.
....
[STATE]: And did this man, [appellant], choke you or
attempt to choke you?
[WITNESS]: Yes, he did.
[DEFENSE COUNSEL]: I object to relevance, Your Honor.
[STATE]: It goes to show motive, opportunity,
absence of mistake. They’ve opened the
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door because this assault on a public
servant in August of 2007 with the jailer,
they’re trying to say he had this magic pill
that made him act all goofy and he was
temporarily insane for a few seconds, but
he was fine before and he was fine after.
This goes to show that [appellant] has not
only a history of displaying knives, but a
history of choking people, just to prove
motive, opportunity, intent, absence of
mistake, planning.
....
THE COURT: Your objection is overruled.
[STATE]: You can answer the question. Did this
man ever choke you?
[WITNESS]: On one occasion, yes.
Appellant asserts that the trial court abused its discretion by admitting this
evidence.
Our review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. Cardona v. State,
665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Allbright v. State, 13 S.W.3d
817, 818 (Tex. App.—Fort Worth 2000, pet. ref’d); see Oveal v. State, No.
14-07-00755-CR, 2008 WL 5085405, at *2 (Tex. App.—Houston [14th Dist.]
Nov. 25, 2008, no pet.) (mem. op., not designated for publication) (applying
the abuse of discretion standard to the granting of a motion to adjudicate). An
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abuse of discretion occurs when the trial judge’s decision is so wrong that it
falls outside the zone within which reasonable persons might disagree.
Allbright, 13 S.W.3d at 818. A trial court’s decision to admit evidence is
subject to review from these same standards. See Moses v. State, 105 S.W.3d
622, 627 (Tex. Crim. App. 2003); Chaddock v. State, 203 S.W.3d 916, 923
(Tex. App.—Dallas 2006, no pet.).
“Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith,” but
such evidence may be admissible to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Tex. R. Evid. 404(b); see Moses, 105 S.W.3d at 626. The trial court is
“entitled to deference” on its decision regarding whether evidence is relevant
to a “non-propensity purpose” under rule 404(b); such a decision is only
reviewable for an abuse of discretion. Ransom v. State, 920 S.W.2d 288, 300
(Tex. Crim. App.) (op. on reh’g), cert. denied, 519 U.S. 1030 (1996); see also
Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.— Fort Worth 2008, pet.
ref’d) (explaining that the “trial court is given wide latitude to admit or exclude
evidence of extraneous offenses”).
Rebuttal of a defensive theory is “one of the permissible purposes for
which relevant evidence may be admitted under Rule 404(b).” Moses, 105
8
S.W.3d at 626; see Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.
2007). Specifically, evidence of previous violent acts is admissible under rule
404(b) to rebut such a theory and prove the intent of the defendant. See Jones
v. State, 241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.);
Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.—Houston [1st Dist.]
1992, no pet.) (noting that when “the accused claims self-defense or accident,
the State, in order to show the accused’s intent, may show other violent acts
where the defendant was an aggressor”).
In Martin v. State, the defendant, who was charged with aggravated
sexual assault of his daughter, submitted a defensive theory that, on the
occasion in question, taking Lithium caused him to have a delusion that he was
in bed with his wife. No. 05-03-01286-CR, 2004 WL 1277948, at *1 (Tex.
App.—Dallas 2004, no pet.) (not designated for publication). The State
countered this theory by presenting evidence that on a previous occasion while
the defendant was not taking Lithium, he sexually assaulted one of his
daughter’s friends. Id. at *2. On appeal, the defendant argued that such
evidence was inadmissible. Id. The Dallas court held that the trial court
properly admitted the evidence of the extraneous sexual assault, noting that it
was relevant to show that the defendant acted intentionally and knowingly with
9
respect to his daughter and to rebut the defensive theory that the sexual
assault was an accident. Id. at *3.
Like Martin, in this case appellant attempted to explain his engaging in
criminal activity (specifically, choking a detention officer) by claiming that he
had an adverse reaction to medication. We agree with the reasoning expressed
in Martin that evidence of an occasion where appellant acted similarly while not
taking medication is relevant to rebut his defensive theory that he acted
inadvertently because of an adverse reaction to medication. Id.; see Moses,
105 S.W.3d at 626. We therefore hold that the trial court did not abuse its
discretion in admitting evidence that appellant had choked his father-in-law.
Further, even if the trial court had erred by admitting this evidence, such
an error could not be reversible for two reasons. First, at a later point in the
hearing on the State’s motion to adjudicate, appellant’s ex-wife testified
without objection that appellant choked her father. To preserve error, a party
must continue to object each time objectionable evidence is offered. Fuentes
v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026
(1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991).
A trial court’s erroneous admission of evidence will not require reversal when
other such evidence is received without objection, either before or after the
complained-of ruling. Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim.
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Ohio App. 1998). Therefore, even if the trial court had improperly overruled
appellant’s initial objection to this evidence, reversal cannot be predicated on
this basis.
Second, even when we hold that there is error, we must conduct a harm
analysis to determine whether the error calls for reversal of the judgment. Tex.
R. App. P. 44.2. Improper admission of evidence is nonconstitutional error that
must be disregarded if it did not affect appellant’s substantial rights. Tex. R.
App. P. 44.2(b); see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001). Here, even if the trial court improperly relied on the extraneous offense
evidence to rebut appellant’s theory that he involuntarily choked the detention
officer because of the effect of his pain medication, there is ample evidence (as
described above) that appellant violated other terms of his deferred adjudication
order; the trial court’s decision to revoke appellant’s community supervision
was therefore proper. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. 1980) (noting that “one sufficient ground for revocation will support the
court’s order” to revoke community supervision). Further, there is no indication
that the evidence of appellant’s choking his father-in-law, comprising three
pages of the reporters record from well over 300 pages of testimony,
influenced the trial court’s sentencing decision. See In re J.G., 195 S.W.3d
161, 183 (Tex. App.—San Antonio 2006, no pet.) (weighing the length of
11
objectionable testimony as a factor in a rule 44.2 harm analysis). Therefore, we
hold that appellant’s substantial rights were not affected.
For these reasons, we overrule appellant’s first point.
Cumulation of Sentences
In his second point, appellant asserts that the cumulation order contained
in his judgment adjudicating guilt is invalid because it orders that his sentence
is to run consecutively even though he has no prior convictions upon which to
“stack” the sentence. 12
Article 42.08 of the code of criminal procedure provides,
When the same defendant has been convicted in two or more
cases, judgment and sentence shall be pronounced in each case in
the same manner as if there had been but one conviction. Except
as provided by Sections (b) and (c) of this article, in the discretion
of the court, the judgment in the second and subsequent
convictions may either be that the sentence imposed or suspended
shall begin when the judgment and the sentence imposed or
suspended in the preceding conviction has ceased to operate, or
that the sentence imposed or suspended shall run concurrently with
the other case or cases, and sentence and execution shall be
accordingly.
Tex. Code Crim. Proc. Ann. art. 42.08 (emphasis added). For cumulation,
“there must be before the court both evidence of the former conviction and
12
… A portion of the judgment states that the sentence “shall run
consecutive to the case specified below,” but no such case is provided.
12
evidence that the defendant was the same person previously convicted.”
Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim. App. 2005).
Here, there is no evidence of any former conviction to support the
cumulation language in the judgment adjudicating guilt or the granting of the
State’s motion to cumulate. The State concedes that the trial court abused its
discretion by cumulating appellant’s sentence in this case with sentences he
may receive in the future.
Appellate courts must remedy “an unlawful cumulation order by reforming
the trial court’s judgment to delete the unlawful order.” Beedy v. State, 250
S.W.3d 107, 113 (Tex. Crim. App. 2008); see Ex parte Jordan, 562 S.W.2d
483, 484 (Tex. Crim. App. [Panel Op.] 1978); Parrish v. State, 628 S.W.2d
524, 526 (Tex. App.—Fort Worth 1982, no pet.).
We hold that the trial court erred by including cumulation language in its
judgment adjudicating guilt and by granting the State’s motion for cumulative
sentences. We therefore sustain appellant’s second point and reform the trial
court’s judgment to delete the cumulation order.
Conclusion
Having sustained appellant’s second point and overruled his first point,
we reform the trial court’s judgment to delete any and all cumulation language
therein, and we affirm the trial court’s judgment in all other respects.
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PER CURIAM
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2009
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