COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00491-CR
ROBERT LEE BOWEN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Robert Lee Bowen appeals his conviction for aggravated assault
on a public servant. In two issues, Appellant contends that the trial court erred
by (1) not letting his expert give an opinion and (2) not conducting a hearing on
Appellant’s request to remove and replace his court-appointed attorney. We
affirm. 1 See Tex. R. App. P. 47.4. Background Facts and Procedural History
Officer Jared Salzman was patrolling central Fort Worth one morning when
he saw a car suspiciously dart into a driveway. Cruising past, Officer Salzman
ran the car’s license plate number on his mobile computer, which immediately
responded with an alert that the car had been reported stolen. Calling for back-
up, Officer Salzman wheeled back to the driveway and, without blocking the car
in, approached Appellant with his service weapon drawn.
Appellant had been standing outside the car, looking it over; a single
passenger remained in the front seat. Officer Salzman ordered Appellant to step
away from the car. Appellant gave him a “blank” stare, calmly climbed into the
car, and “floor[ed] it” out of the driveway and down the street. Officer Salzman
returned to his patrol car, activated its lights and siren, and went after Appellant.
Appellant ran the car over a stop sign, hopped a curb into Glenwood Park,
and drove across the grass before nose-diving down a small ravine above a
creek bed. He and the passenger crawled out of the wreck and fled in opposite
directions.
As officers responding to the call for back-up followed the passenger west,
Appellant took the creek bed east and disappeared into a tunnel passing beneath
the roadway. Officer Salzman saw him go in and followed.
The tunnel was large enough to walk through but unlit and very dark. With
his flashlight Officer Salzman could see Appellant progressing through the tunnel
against the wall, looking back over his right shoulder. Officer Salzman drew his
2 taser and warned Appellant that he would use it if Appellant did not stop. As
Appellant pressed onward, Officer Salzman saw a handgun held down by
Appellant’s side closest to the tunnel wall. Officer Salzman substituted his
service pistol for the taser.
Appellant turned suddenly toward the officer, who then fired six rounds,
striking Appellant at least twice. Appellant released his weapon and dropped to
his knees. As other officers arrived in the tunnel, Appellant remarked, “You
better be glad you did that. I was going to shoot you and shoot myself.”
Emergency personnel took Appellant to the hospital. He had nonfatal
wounds through his wrist and across the fleshy portion of his midsection. He had
also sustained a small defect or dent in the center of his chest.
A grand jury returned an indictment charging Appellant with attempted
capital murder and aggravated assault on a public servant. The trial court
appointed attorney Richard Kline to represent the defense.
Several months before trial, Appellant filed a pro se letter addressed to the
trial court, complaining of Kline’s representation. A few months later, he also
filed, pro se, a “Declaration of Conflict between Attorney and Client and Motion
for Substitution of Appointed Counsel.” The record does not indicate whether
either of these was presented to the trial court, but the court’s docket sheet
indicates that copies of both were forwarded to Appellant’s counsel.
The State presented evidence at trial that the wounds Appellant had
sustained were consistent with his having been fired upon from the front. Ronald
3 Fazio, a board-certified forensic scientist and certified firearms examiner, testified
for the defense that, after examining the shirt Appellant had worn when he was
shot, as well as numerous photographs of Appellant’s injuries, he had formed the
belief that Appellant had been shot in the rib cage while bent over in a crouching
position and that the bullet had passed through a crease in the folds of
Appellant’s flesh, which caused injury to both the top and bottom portions of the
crease. Fazio also testified that in his opinion, Appellant “could not have been
facing directly towards the officer” when he was shot.
The jury found Appellant guilty of aggravated assault of a public servant.
Appellant pled true to the enhancement allegation in the indictment, and the trial
court assessed his punishment at thirty-eight years’ confinement and sentenced
him accordingly.
Expert Opinion
In his first issue, Appellant claims that the trial court erred by sustaining the
State’s objection to Fazio’s opinion testimony about the “nature of the wounds”
Appellant had sustained when he was shot. Appellant argues, “If Fazio had been
allowed to testify to the nature of Appellant’s wounds, a fact issue would have
been created as to whether Appellant was turning to face Officer Salzman or
whether Appellant’s back was actually facing Officer Salzman when he [Salzman]
fired his weapon.” In other words, Appellant argues that the trial court erred by
not letting Fazio give his opinion that Appellant was shot from the back to the
front rather than from front to back, as the State’s evidence had shown. If the
4 evidence showed that Officer Salzman had fired while Appellant was facing away
from him, it would imply that Appellant had not turned a weapon toward the
officer at the time he was shot, which would undercut the State’s theory of the
case and possibly would have led the jury to acquit.
We reject this claim for two reasons. First, because Appellant did not
make an offer of proof, it is unclear from the record precisely what questions he
wished to ask of Fazio and what answers he expected to elicit from him. Rule of
evidence 103 (a)(2) provides that
[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.
Tex. R. Evid. 103(a)(2); see Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim.
App. 2009); Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009);
Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511
U.S. 1100 (1994); Hardeman v. State, No. 02-10-00025-CR, 2011 WL 1901978,
at *4 (Tex. App.––Fort Worth May 19, 2011, no pet.) (mem. op., not designated
for publication).
Second, even if we were to infer from the record and Appellant’s brief that
Appellant expected Fazio to testify that the bullets had come from the back to the
front rather than the front to the back and that the trial court erred to prohibit the
opinion, we would hold the error harmless because Fazio presented that very
opinion to the jury shortly after the ruling that Appellant claims kept it out.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00491-CR
ROBERT LEE BOWEN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Robert Lee Bowen appeals his conviction for aggravated assault
on a public servant. In two issues, Appellant contends that the trial court erred
by (1) not letting his expert give an opinion and (2) not conducting a hearing on
Appellant’s request to remove and replace his court-appointed attorney. We
affirm. 1 See Tex. R. App. P. 47.4. Background Facts and Procedural History
Officer Jared Salzman was patrolling central Fort Worth one morning when
he saw a car suspiciously dart into a driveway. Cruising past, Officer Salzman
ran the car’s license plate number on his mobile computer, which immediately
responded with an alert that the car had been reported stolen. Calling for back-
up, Officer Salzman wheeled back to the driveway and, without blocking the car
in, approached Appellant with his service weapon drawn.
Appellant had been standing outside the car, looking it over; a single
passenger remained in the front seat. Officer Salzman ordered Appellant to step
away from the car. Appellant gave him a “blank” stare, calmly climbed into the
car, and “floor[ed] it” out of the driveway and down the street. Officer Salzman
returned to his patrol car, activated its lights and siren, and went after Appellant.
Appellant ran the car over a stop sign, hopped a curb into Glenwood Park,
and drove across the grass before nose-diving down a small ravine above a
creek bed. He and the passenger crawled out of the wreck and fled in opposite
directions.
As officers responding to the call for back-up followed the passenger west,
Appellant took the creek bed east and disappeared into a tunnel passing beneath
the roadway. Officer Salzman saw him go in and followed.
The tunnel was large enough to walk through but unlit and very dark. With
his flashlight Officer Salzman could see Appellant progressing through the tunnel
against the wall, looking back over his right shoulder. Officer Salzman drew his
2 taser and warned Appellant that he would use it if Appellant did not stop. As
Appellant pressed onward, Officer Salzman saw a handgun held down by
Appellant’s side closest to the tunnel wall. Officer Salzman substituted his
service pistol for the taser.
Appellant turned suddenly toward the officer, who then fired six rounds,
striking Appellant at least twice. Appellant released his weapon and dropped to
his knees. As other officers arrived in the tunnel, Appellant remarked, “You
better be glad you did that. I was going to shoot you and shoot myself.”
Emergency personnel took Appellant to the hospital. He had nonfatal
wounds through his wrist and across the fleshy portion of his midsection. He had
also sustained a small defect or dent in the center of his chest.
A grand jury returned an indictment charging Appellant with attempted
capital murder and aggravated assault on a public servant. The trial court
appointed attorney Richard Kline to represent the defense.
Several months before trial, Appellant filed a pro se letter addressed to the
trial court, complaining of Kline’s representation. A few months later, he also
filed, pro se, a “Declaration of Conflict between Attorney and Client and Motion
for Substitution of Appointed Counsel.” The record does not indicate whether
either of these was presented to the trial court, but the court’s docket sheet
indicates that copies of both were forwarded to Appellant’s counsel.
The State presented evidence at trial that the wounds Appellant had
sustained were consistent with his having been fired upon from the front. Ronald
3 Fazio, a board-certified forensic scientist and certified firearms examiner, testified
for the defense that, after examining the shirt Appellant had worn when he was
shot, as well as numerous photographs of Appellant’s injuries, he had formed the
belief that Appellant had been shot in the rib cage while bent over in a crouching
position and that the bullet had passed through a crease in the folds of
Appellant’s flesh, which caused injury to both the top and bottom portions of the
crease. Fazio also testified that in his opinion, Appellant “could not have been
facing directly towards the officer” when he was shot.
The jury found Appellant guilty of aggravated assault of a public servant.
Appellant pled true to the enhancement allegation in the indictment, and the trial
court assessed his punishment at thirty-eight years’ confinement and sentenced
him accordingly.
Expert Opinion
In his first issue, Appellant claims that the trial court erred by sustaining the
State’s objection to Fazio’s opinion testimony about the “nature of the wounds”
Appellant had sustained when he was shot. Appellant argues, “If Fazio had been
allowed to testify to the nature of Appellant’s wounds, a fact issue would have
been created as to whether Appellant was turning to face Officer Salzman or
whether Appellant’s back was actually facing Officer Salzman when he [Salzman]
fired his weapon.” In other words, Appellant argues that the trial court erred by
not letting Fazio give his opinion that Appellant was shot from the back to the
front rather than from front to back, as the State’s evidence had shown. If the
4 evidence showed that Officer Salzman had fired while Appellant was facing away
from him, it would imply that Appellant had not turned a weapon toward the
officer at the time he was shot, which would undercut the State’s theory of the
case and possibly would have led the jury to acquit.
We reject this claim for two reasons. First, because Appellant did not
make an offer of proof, it is unclear from the record precisely what questions he
wished to ask of Fazio and what answers he expected to elicit from him. Rule of
evidence 103 (a)(2) provides that
[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.
Tex. R. Evid. 103(a)(2); see Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim.
App. 2009); Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009);
Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511
U.S. 1100 (1994); Hardeman v. State, No. 02-10-00025-CR, 2011 WL 1901978,
at *4 (Tex. App.––Fort Worth May 19, 2011, no pet.) (mem. op., not designated
for publication).
Second, even if we were to infer from the record and Appellant’s brief that
Appellant expected Fazio to testify that the bullets had come from the back to the
front rather than the front to the back and that the trial court erred to prohibit the
opinion, we would hold the error harmless because Fazio presented that very
opinion to the jury shortly after the ruling that Appellant claims kept it out.
5 Appellant argues that the trial court erred by preventing Fazio from giving opinion
testimony about the nature of Appellant’s wounds, that is, whether they were
entry or exit wounds. But, shortly after the ruling that Appellant claims kept
Fazio’s opinion out, the record shows that Fazio testified
[i]n my opinion, at the time the bullet defects, both in the wrist and in the side, he could not have been facing directly towards the officer. The one in the center, which I originally thought and looks very much like a bullet defect, is just not consistent with a bullet. [Appellant] would likely be dead if that was a bullet. So there’s nothing in there that indicates that he was facing directly the officer at the time of the bullet.
Because the opinion evidence that Appellant faults the trial court for excluding
was, in fact, admitted, if the trial court’s ruling excluding the evidence was error,
we disregard it. See Tex. R. App. P. 44.2(b): Johnson v. State, 43 S.W.3d 1, 3–4
(Tex. Crim. App. 2001). Accordingly, we overrule Appellant’s first issue.
Keeping Counsel
In his second issue, Appellant contends that the trial court erred by not
conducting a hearing on Appellant’s dissatisfaction with his court-appointed
attorney. The State responds that the trial court did not reversibly err by failing to
conduct a hearing on Appellant’s pro se motion to substitute appointed counsel
because Appellant failed to set it for a hearing and failed to plead adequate
grounds for substitution. We agree with the State.
A defendant unsatisfied with his attorney has the burden of bringing his
complaint to the trial court’s attention by filing a motion to substitute and setting it
for a hearing. See Malcom v. State, 628 S.W.2d 790, 791–92 (Tex. Crim. App.
6 [Panel Op.] 1982); Garner v. State, 864 S.W.2d 92, 98–99 (Tex. App.––Houston
[1st Dist.] 1993, pet. ref’d).
Appellant’s pro se motion declaring a conflict with his attorney prays for a
hearing, but there is nothing in the record to indicate that Appellant ever
presented his motion to the trial court judge or attempted to set it for a hearing
with either the trial court judge or the court coordinator. Accordingly, we overrule
Appellant’s second issue. See Garner, 864 S.W.2d at 99.
Conclusion
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: July 25, 2013