Gary Ishmael Bolin v. State
14-14-00522-CR
| Tex. App. | Jan 14, 2015Background
- Appellant Gary Ishmael Bolin pled guilty in two aggravated-assault indictments in Harris County, waived a jury, and submitted to bench trials without an agreed plea recommendation from the State. After testimony and a presentence investigation report, the trial court found Bolin guilty and sentenced him to concurrent terms of 20 and 5 years.
- Facts: Bolin had a lease-purchase dispute with business owner Greg Ward. On Valentine’s Day 2013, Bolin entered the business ostensibly to deliver roses, approached Ward’s office, and shot Ward in the face. An employee Evan Gooch witnessed Bolin holding and pointing a smoking gun; another employee saw Bolin point the gun and then leave calmly.
- The trial court signed certifications, dated before the guilt/punishment finding, stating Bolin waived his right of appeal. The court later entered findings of guilt and assessed punishment; under Washington v. State this pre-finding waiver is ineffective, so Bolin retains appellate rights.
- Bolin’s sole appellate complaint: the trial court heard victim-impact/punishment evidence before making an explicit finding of guilt, which he argues was improper.
- The State’s response: bench trials are unitary proceedings where guilt and punishment are determined in a single, integrated hearing; admitting punishment evidence before a formal guilt finding in that context is not error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether receiving punishment/victim-impact evidence before an explicit finding of guilt in a bench trial is improper | Bolin: hearing punishment evidence before a guilt finding is irregular and erroneous | State: bench trials are unitary; evidence for guilt and punishment may be heard in one proceeding | Court: no error; bench trials are unitary and the procedure used was proper |
| Validity of pre-finding appellate-waiver certificate | Bolin: waiver executed before guilt/punishment is invalid under controlling precedent | State: acknowledged Washington controls and conceded Bolin retains appellate rights | Court: waiver invalid; Bolin has right to appeal |
Key Cases Cited
- Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001) (bench trials are unitary proceedings; guilt and punishment determinations are not separate)
- Lopez v. State, 96 S.W.3d 406 (Tex. App.—Austin 2002) (in a bench trial, guilt and punishment cannot be separated)
- Washington v. State, 363 S.W.3d 589 (Tex. Crim. App. 2012) (a defendant’s waiver of appeal signed before a finding of guilt and assessment of punishment is ineffective)