Brian Kristofer Collins v. the State of Texas

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00252-CR ___________________________

BRIAN KRISTOFER COLLINS, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1690529R

Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

Appellant Brian Kristofer Collins appeals his convictions for assault–family

violence enhanced and assault by contact. 1 In two issues, Collins argues that the trial

court erred by allowing evidence of his prior convictions for family violence to be

introduced during the guilt–innocence phase and that even if the introduction of

prior-conviction evidence during the guilt–innocence phase was proper, the trial court

nevertheless erred by allowing the State to introduce evidence of two separate prior

convictions—one for each of the two counts charged in the indictment—when only

one would have sufficed for both counts. Because we hold (1) that Collins’s prior

assault–family violence convictions constituted an element of the charged felony

assault–family violence offenses and were therefore properly introduced during guilt–

innocence and (2) that the State was not required to allege the same prior conviction

in each of the indictment’s two counts, we affirm.

I. BACKGROUND

Complainant began dating Collins in 2014 or 2015. During the course of their

dating relationship, Collins committed multiple acts of violence against Complainant.

In 2015, Collins punched Complainant and attempted to strangle her. When she tried

to leave to call 911, Collins pulled her back into their house by her hair. Based on this

incident, Collins was ultimately charged and convicted of assault–family violence.

1 As more fully discussed below, Collins was indicted for two counts of assault– family violence. Following a jury trial, he was convicted on the second count and convicted of the lesser-included offense of assault by contact on the first count.

2 Eventually, Complainant allowed Collins to move back into her home. After

Collins attacked her again, she broke up with him.

In 2020, although Complainant and Collins were no longer dating,

Complainant agreed to let Collins stay at her apartment for a few days. One

afternoon during his stay, Collins jumped on Complainant and pinned her arms and

legs down. She testified that after pinning her down, Collins yelled and spit at her and

then began choking and smothering her. According to Complainant, she was unable

to breathe and lost consciousness at one point during the episode. After Collins

finally fell asleep, Complainant ran to a nearby convenience store and called police.

Collins was arrested and indicted for assault–family violence by impeding

breath with a prior conviction (Count One), see Tex. Penal Code Ann. § 21.01(a)(1),

(b-3), and assault–family violence with a prior conviction (Count Two), see id.

§ 21.01(b)(2)(A).

Before trial, Collins objected to the prior-conviction allegation in Count One of

the indictment. Specifically, Collins objected to the State’s including allegations

concerning two different prior convictions for Counts One and Two when only one

such prior conviction was necessary, arguing that it was “very harmful” to Collins’s

defense for the State “to get to say he’s got not only one, but two prior convictions.”

The trial court overruled Collins’s objection and granted him a running objection to

the evidence of the prior conviction alleged in Count One.

3 Collins pleaded not guilty , and the trial court conducted a jury trial. The jury

convicted Collins on Count Two and found him guilty of the lesser-included offense

of assault by contact on Count One. The trial judge sentenced Collins to twenty years

in prison on Count Two 2 and imposed a $500 fine for the assault-by-contact offense.

This appeal followed.

II. DISCUSSION

On appeal, Collins raises two issues. First, he argues that the trial court erred

by allowing the State to inform the jury of his prior conviction for assault–family

violence alleged in Count One of the indictment during the guilt–innocence phase of

the trial. Second, he argues that even if it were proper for the State to introduce

evidence of a prior conviction during the guilt–innocence phase, the trial court

nevertheless erred by allowing the State to introduce evidence of two separate prior

convictions—one for Count One and another for Count Two—when only one would

have sufficed for both counts. Collins’s arguments lack merit.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

2 Although the offense in Count Two is a third-degree felony, see Tex. Penal Code Ann. § 21.01(b)(2)(A), because Collins pled “true” to the indictment’s enhancement paragraph alleging that he was a habitual felony offender, his Count Two offense was punishable as a second-degree felony, see Tex. Penal Code Ann. § 12.42(a).

4 trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id.

Even if a trial court improperly admits evidence, such an error generally does

not warrant reversal unless it affects an appellant’s substantial rights. See Tex. R. App.

P. 44.2(b). “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010). Improperly admitted evidence that did not

influence the jury or had but a slight effect on the verdict is harmless. Id. Further, a

trial court’s error in improperly admitting evidence may be rendered harmless if other

evidence that proves the same facts as the inadmissible evidence is admitted without

objection. See Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003).

B. Issue One: The Prior Conviction Is an Element of the Offense

In his first issue, Collins argues that the trial court erred by allowing the State to

inform the jury of the prior conviction alleged in Count One of the indictment during

the guilt–innocence phase of trial. Collins contends that the evidence of his prior

conviction was not “jurisdictional” and therefore should not have been introduced

until the trial’s sentencing phase because (1) the State had already alleged a different

prior conviction in Count Two of the indictment and (2) the prior conviction was not

necessary to vest the trial court with jurisdiction since the Count One offense would

5 have been a third-degree felony even without the inclusion of the prior-conviction

allegation in the indictment. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1).

This issue has been thoroughly analyzed and resolved contrary to Collins’s

position. Both the Texas Court of Criminal Appeals and numerous intermediate

appellate courts—including this court—have concluded that proof of a prior assault

conviction is an element of the offense of felony assault–family violence and thus

must be proven beyond a reasonable doubt during the trial’s guilt–innocence phase.

See, e.g., Holoman v. State, 620 S.W.3d 141, 146–47 (Tex. Crim. App. 2021) (holding that

Section 22.01(b)(2)(A)’s “prior-assault-on-a-family-member-conviction” provision

“establishes an element of an aggravated crime and not, alternatively, a punishment

enhancement”); Walker v. State, No. 02-19-00309-CR, 2020 WL 7063298, at *2–3

(Tex. App.—Fort Worth Dec. 3, 2020, no pet.) (mem. op., not designated for

publication) (recognizing that “almost all of the fourteen Texas intermediate appellate

courts have concluded that proof of a prior assault conviction is an element of the

offense of felony assault–family violence” and agreeing with these prior decisions).

Although Collins does not mention Holoman in his brief, he attempts to

distinguish Walker by pointing out that, unlike the present case in which the prior

conviction simply elevated Count One from a third-degree to a second-degree felony,

Walker’s prior conviction elevated his offense from a mere misdemeanor to a third-

degree felony. See Walker, 2020 WL 7063298, at *1. Collins contends that because

Count One would have been a felony even without the prior conviction—meaning

6 that the prior conviction was not necessary to vest the trial court with jurisdiction, see

Tex. Code Crim. Proc. Ann. art. 4.05—the prior conviction was not “jurisdictional”

and therefore should not have been introduced until the trial’s punishment phase, see

id. art. 36.01(a)(1). However, the Texas Court of Criminal Appeals has specifically

rejected such an ad hoc method of determining the jurisdictional nature of a prior-

conviction provision in favor of a categorical approach. See Holoman, 620 S.W.3d at

144–46. In Holoman, the State Prosecuting Attorney argued that the court should

regard the proof of the appellant’s prior assault-on-a-family-member conviction as a

matter of punishment enhancement only because the State did not have to invoke the

Section 22.01(b)(2)(A) prior-conviction provision to confer subject-matter jurisdiction

on the trial court in that particular case. Id. at 146. Rejecting this argument, the Texas

Court of Criminal Appeals held that regardless of whether the State relies upon

Section 22.01(b)(2)(A) to invoke the trial court’s subject-matter jurisdiction in a

particular case, “it is not a mere punishment-enhancing aggravator.” Id. at 146.

In light of our prior decision in Walker, 2020 WL 7063298, at *2–3, and the

binding authority that speaks clearly on this issue from the Texas Court of Criminal

Appeals, see Holoman, 620 S.W.3d at 146–47, we overrule Collins’s first issue.

C. Issue Two: The State Was Not Required to Allege the Same Prior Conviction in Both Counts In his second issue, Collins argues that the trial court erred by allowing the

State to inform the jury of his prior conviction alleged in Count One because it had

7 alleged a different prior conviction in Count Two.3 In essence, Collins appears to

assert either (1) that the State is prohibited from listing two different prior convictions

as offense elements in two separate counts or (2) that if the State chooses to list

different prior convictions in two separate counts, it should nevertheless be allowed to

introduce evidence of only one of the prior convictions during the guilt–innocence

phase of trial.4 However, Collins fails to cite any relevant authority supporting either

of these propositions.

Instead, Collins relies primarily on two cases, Tamez v. State, 11 S.W.3d 198

(Tex. Crim. App. 2002), and Taylor v. State, 442 S.W.3d 747 (Tex. App.—Amarillo

2014, pet. ref’d), that are not on point. In Tamez, the appellant was charged with one

count of driving while intoxicated (DWI). 11 S.W.3d at 199. Under Penal Code

Section 49.09(b), DWI is a third-degree felony if the defendant has two prior DWI

3 We note that Collins’s argument is limited to the admission of the evidence of his prior conviction alleged in Count One; he does not challenge the admission of the evidence concerning his prior conviction alleged in Count Two. Indeed, because Collins failed to complain at trial about the evidence of the prior conviction alleged in Count Two, he has forfeited any error concerning its admission. See Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009). 4 To the extent that Collins asserts that the trial court’s admission of the evidence of his prior conviction alleged in Count One was erroneous under Rule 403 because its probative value was outweighed by the danger of unfair prejudice, see Tex. R. Evid. 403, he has forfeited that complaint because he failed to assert a Rule 403 objection at trial. See Tex. R. App. P. 33.1(a); Lovill, 319 S.W.3d at 691–92 (noting that an issue is not preserved “if the legal basis of the complaint raised on appeal varies from the complaint made at trial”); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (admonishing that for error to be preserved, the appellant’s “point of error on appeal must comport with the objection made at trial”).

8 convictions. Tex. Penal Code Ann. § 49.09(b). Although the statute only required

two prior convictions to elevate appellant’s DWI offense to a felony, the indictment

alleged that the appellant had six prior convictions. Tamez, 11 S.W.3d at 199. Before

trial, the appellant offered to stipulate to two previous convictions if the trial court

would prohibit the State from mentioning his prior convictions to the jury, but the

trial court refused. Id. Accordingly, during the guilt–innocence phase of trial, the

State informed the jury of all six of the appellant’s prior DWI convictions. Id. The

Court of Criminal Appeals, holding that any prior convictions “beyond the two

jurisdictional elements should not [have] be[en] read or proven during the State’s case-

in-chief,” reversed the appellant’s conviction. Id. at 202–03.

Similarly, in Taylor, the appellant was charged with one count of felony assault–

family violence. 442 S.W.3d at 749. Although the relevant statute only required one

prior conviction to elevate the offense to a third-degree felony, the indictment alleged

two prior convictions. Id. The Amarillo Court of Appeals held that the trial court

had abused its discretion by allowing the State to read both prior convictions to the

jury during the trial’s guilt–innocence phase. Id. at 751.

Both Tamez and Taylor are distinguishable from the present case. Crucially,

both of these cases involved one-count indictments. See Tamez, 11 S.W.3d at 199;

Taylor, 442 S.W.3d at 749. Thus, these cases do not—indeed cannot—stand for the

proposition that the State must allege the same prior conviction in each count of a

multi-count indictment. Nor do they support the proposition that evidence proving a

9 prior conviction alleged in one count of an indictment suffices for another count

alleging a different prior conviction.

At best (from Collins’s standpoint), these cases stand for the proposition that a

trial court abuses its discretion by allowing the State to put on evidence of more prior

convictions than necessary to prove the statutory elements of the offense as modified

by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App.

2000). But the State did not violate this principle in this case. The State was required

to prove a prior assault conviction as an element of each offense with which Collins

was charged. See Tex. Penal Code Ann. § 21.01(b)(2)(A), (b-3); Holoman, 620 S.W.3d

at 146–47. Moreover, because the indictment alleged different prior convictions in

Counts One and Two, the State was required to prove each of these separate prior

convictions beyond a reasonable doubt. See Curry, 30 S.W.3d at 404 (holding that a

hypothetically correct jury charge must set forth “the statutory elements of the

offense . . . as modified by the charging instrument”); see also Gollihar v. State, 46

S.W.3d 243, 254 (Tex. Crim. App. 2001) (“[T]he indictment [is] the basis for the

allegations which must be proved . . . .” (quoting Planter v. State, 9 S.W.3d 156, 159 n.5

(Tex. Crim. App. 1999))). This is exactly what the State did. Unlike Tamez and Taylor,

the trial court did not allow the State to present evidence of additional prior

convictions beyond those needed to prove the elements of the charged offenses as

modified by the indictment. Thus, the trial court did not abuse its discretion. See

Zuliani, 97 S.W.3d at 595.

10 Even if we were to conclude that the trial court erred by admitting the evidence

concerning the prior conviction alleged in Count One, reversal would not be

warranted because Collins has not shown that he was harmed by the evidence’s

admission. See Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet.

ref’d) (recognizing that the erroneous admission of a prior conviction is subject to a

non-constitutional harm analysis); see also Tex. R. App. P. 44.2(b); Coble, 330 S.W.3d at

280. While Collins’s brief states in a conclusory fashion that “the State prejudiced

[him]” by “inserting an entirely different prior conviction into [C]ount [O]ne of th[e]

indictment,” he does not state with particularity how he was harmed or how his

substantial rights were prejudiced. See Tex. R. App. P. 38.1(i) (requiring an appellant’s

brief to include “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record”). Any claim of harm

concerning the admission of the Count One prior-conviction evidence is undermined

by the fact that the jury did not convict Collins of the offense alleged in Count One

but instead merely found him guilty of the lesser-included offense of assault by

contact. Cf. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (holding trial

court’s admission of prejudicial evidence to be harmless error because the jury

acquitted one of the defendants and convicted appellant of a lesser-included offense);

Fish v. State, 609 S.W.3d 170, 183 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d)

(“[I]t is unlikely the jury harbored a reasonable doubt on the manslaughter charge, but

convicted him nonetheless based on any unfair prejudice from the extraneous offense

11 evidence, because the jury acquitted appellant of the greater charge of murder.”); Bean

v. State, No. 13-01-030-CR, 2001 WL 34394342, at *2 (Tex. App.—Corpus Christi–

Edinburg Oct. 4, 2001, no pet.) (not designated for publication) (“Logic dictates that

when the complained[-]of evidence is offered to establish proof of the greater offense,

but the jury acquits the defendant of that offense and convicts of the lesser offense,

the complained[-]of evidence did not have a substantial and injurious effect or

influence on the jury’s verdict.”).

Having concluded (1) that there was no rule prohibiting the State from listing

two different prior convictions as offense elements in Counts One and Two, (2) that

the trial court did not abuse its discretion by allowing the State to introduce evidence

of both prior convictions, and (3) that any error in the admission of the prior

conviction alleged in Count One was harmless, we overrule Collins’s second issue.

III. CONCLUSION

Having overruled both of Collins’s issues, we affirm the trial court’s judgments.

/s/ Dabney Bassel

Dabney Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: July 13, 2023