Bolin, Gary Ishmael, PD-0519-15

Background

Gary Ishmael Bolin pleaded guilty (without an agreed punishment recommendation) to two aggravated-assault offenses, one also alleging use/exhibition of a firearm; the trial court assessed 20 years’ confinement.
After plea admonishments the court found there was sufficient evidence but deferred a formal finding of guilt pending a presentence investigation (PSI); live victim testimony was presented before the finding of guilt and before the PSI was prepared.
The complainant and several family members testified about the physical, emotional, and economic impact of the shooting; some testimony was victim‑impact in nature (e.g., family members describing fear, relocation, career disruption).
The trial judge expressed that certain victim-impact testimony would be disregarded and admonished the prosecution not to ask about how the crime affected witnesses, but the prosecutor nevertheless asked another son about the emotional effects.
Bolin did not object at trial to the victim-impact questions or testimony. The court later took judicial notice of the PSI, found Bolin guilty, and imposed concurrent sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether victim‑impact testimony admitted before a finding of guilt was improper and requires remand	State: The testimony was relevant to the unitary proceeding after a guilty plea and did not improperly influence the court	Bolin: The testimony was inadmissible at the guilt stage and the court’s consideration of it before a finding of guilt mandates reversal/remand	Court: Error not preserved (no objection) and, in any event, harmless because court said it would disregard testimony and the proceeding was a unitary plea hearing
Whether failure to object forfeited appellate review	State: No preservation; court’s bench admonition and defendant’s silence do not substitute for an objection	Bolin: The court’s own statements about ignoring testimony and the apparent prejudice should preserve the issue	Court: Bolin failed to preserve error by not objecting; bench admonition did not cure preservation requirement
Whether victim‑impact evidence could have influenced punishment/finding of guilt in a non‑bifurcated plea proceeding	State: When defendant waives jury and pleads to the court without bifurcation, guilt and punishment are unitary and such evidence may be relevant to culpability	Bolin: Victim‑impact evidence is irrelevant to guilt and, admitted before a finding of guilt, is especially prejudicial	Court: In a unitary plea proceeding the issues are submitted together; because court said it would disregard the evidence, admission did not affect the court’s finding of guilt
Whether the waiver of appeal was effective without an agreed sentence recommendation	State: Trial record showed a waiver, but the court of appeals focused on other issues	Bolin: Waiver invalid because no agreed recommendation; Washington v. State controls	Court of Appeals: Affirmed conviction (appellate opinion acknowledges waiver issue but notes Washington rule); appellant raised it in petition for discretionary review

Key Cases Cited

Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1990) (victim‑impact testimony is irrelevant to guilt‑innocence phase)
Washington v. State, 363 S.W.3d 589 (Tex. Crim. App. 2012) (waiver of appeal ineffective when made before sentencing without an agreed punishment recommendation)
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (preservation rule for complaints about victim‑impact evidence)
Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001) (when defendant waives jury and pleads guilty to the court, guilt and punishment may be submitted together)
Espinosa v. State, 194 S.W.3d 703 (Tex. App.—Houston [14th Dist.] 2006) (victim‑impact evidence may be admissible at punishment when bearing on moral culpability)
Lane v. State, 822 S.W.2d 35 (Tex. Crim. App. 1991) (definition and limits of victim‑impact testimony)