COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00136-CR
NO. 02-15-00137-CR
AARON JESS MARLAR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NOS. CR14-0355, CR14-0493
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MEMORANDUM OPINION 1
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In one issue, appellant Aaron Jess Marlar appeals his third-degree felony
convictions for assault against a member of his family or household and for
repeated violations of conditions of a bond in a family violence case. 2 He
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 22.01(a)(1), (b)(2)(A), 25.072(a), (e) (West
Supp. 2015).
contends that during the hearing on the State’s petition to revoke his community
supervision for these offenses, the trial court violated his right of confrontation
under the Sixth Amendment. 3 We affirm.
Background Facts
Through separate indictments, appellant was charged with assault against
a member of his family or household and with repeated violations of conditions of
a bond in a family violence case. The indictment in the assault case alleged that
he had been previously convicted of assault against a member of his family or
household. In each case, appellant pled guilty. The trial court convicted him in
each case, assessed punishment of ten years’ confinement, suspended
imposition of the sentences, and placed him on community supervision. 4
The day after appellant’s community supervision began in each case, the
State filed a petition to revoke it. The State alleged that he had violated a
3
See U.S. Const. amend. VI (stating that in “all criminal prosecutions, the
accused shall enjoy the right to . . . be confronted with the witnesses against
him”).
4
The clerk’s records in these appeals do not contain the orders placing
appellant on community supervision, but they contain other documents
describing his placement on community supervision. An exhibit in the reporter’s
record contains a transcript of the hearing in which appellant pled guilty to the
offenses and in which the trial court convicted him and placed him on community
supervision.
2
condition by impermissibly contacting the victim of his assault. 5 The State later
amended its revocation petition twice in each case.
At the hearing on the State’s second amended revocation petition,
appellant pled not true to the petition’s allegations. After the trial court took
judicial notice of the contents of its file, before calling any witnesses, the State
offered State’s Exhibit 1, which was a transcript of the hearing in which appellant
had pled guilty to each offense and had been placed on community supervision.
The following colloquy occurred:
[THE STATE]: Judge, at this time, I’d like to offer State’s
[Exhibit] 1, which is the transcript . . . from the plea.
[DEFENSE COUNSEL]: Your Honor, I’ll object to no
foundation.
THE COURT: Response, [State]?
[THE STATE]: I could call your court reporter, Judge, but that
would make it very difficult to have somebody report the events of
this proceeding. We’d need to get the reporter from next door.
THE COURT: Overruled. Admitted.
5
Specifically, the State’s revocation petition alleged that appellant had
violated the following condition:
(pp) Defendant shall refrain completely from contact with . . .
the victim of this cause, either in person, by telephone, in writing, by
text, instant messaging, or other form of electronic communication,
or through any other individual or means, except for the sole
purpose of arranging for visitation with the children Defendant
shares with [the victim]. In the event that [the victim] is not, at the
time in question, the person with custody of the aforesaid children,
Defendant shall not initiate or have any communication with her
whatsoever.
3
....
[THE COURT:] And in relation to State’s Exhibit 1 that was
just admitted, the court will . . . acknowledge that this is a record
from Glenna G. Windell who is also the official court reporter of this
court who took this transcript.
....
[DEFENSE COUNSEL]: Your Honor, one more objection to
add. Hearsay.
THE COURT: On State’s Exhibit 1?
[DEFENSE COUNSEL]: On State’s Exhibit 1.
THE COURT: Overruled.
After the admission of State’s Exhibit 1, the trial court heard testimony from
appellant’s ex-wife, R.M. (Reyna), 6 who is the victim of his assault offense. She
testified that after the trial court placed appellant on community supervision, he
contacted her by phone, through social media, and through letters. 7 Reyna
conceded that parts of these contacts concerned visitation issues but testified
that other parts concerned the relationship between her and appellant.
During appellant’s cross-examination of Reyna, he voiced another
objection to State’s Exhibit 1. The following exchange occurred:
6
We use an alias to protect the victim’s anonymity. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
7
The trial court admitted a recording of a voice mail that appellant had left
for Reyna, a copy of a message that appellant had sent to Reyna through
Facebook, and copies of letters that appellant had sent to Reyna. In the
Facebook message, appellant told Reyna that he loved her and missed her; he
also stated that he knew that sending the message could “put [him] in prison for
10 years.”
4
[DEFENSE COUNSEL]: And, Your Honor, in thinking about
State’s 1, I have -- I want to make an additional objection . . . . So
I’m going to bring up a [C]onfrontation [C]lause [objection] on that
also because [appellant] wasn’t the actual one that was doing the
questioning and answering, and he made a statement on State’s
1. . . .
THE COURT: Specifically what in State’s 1 are you objecting
to?
[DEFENSE COUNSEL]: Well, you know, it’s basically the
statements that are made by -- it could be statements made by
anybody except [appellant] who was placed under oath on State’s 1.
....
THE COURT: I’m going to -- so what’s your objection?
[DEFENSE COUNSEL]: Under the [C]onfrontation [C]lause.
THE COURT: Overruled.
The trial court also heard testimony from other witnesses. The court found
that appellant had violated the no-contact condition of his community supervision
and heard more evidence on his punishment. In each case, the court then
revoked the community supervision and sentenced appellant to nine years’
confinement. The court ordered the sentences to run concurrently. Appellant
brought these appeals.
Confrontation Clause Objection
In his only issue, appellant contends that the trial court violated his right of
confrontation when it admitted State’s Exhibit 1. He argues that the issue of
whether a defendant enjoys the right of confrontation under the Sixth
Amendment at a revocation hearing is unsettled and that we should resolve the
5
issue. Assuming without deciding that appellant preserved this complaint for our
review and that the trial court violated his right of confrontation by admitting
State’s Exhibit 1, we conclude that any such violation could not have harmed
appellant under the circumstances presented here.
When assessing whether constitutional error, including error related to a
defendant’s right of confrontation, is harmful, we apply rule of appellate
procedure 44.2(a). Tex. R. App. P. 44.2(a); Sanders v. State, 422 S.W.3d 809,
817 (Tex. App.—Fort Worth 2014, pet. ref’d). The question is whether the trial
court’s admission of State’s Exhibit 1 over appellant’s Confrontation Clause
objection was harmless beyond a reasonable doubt. See Tex. R. App. P.
44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In
applying the “harmless error” test, our primary question is whether there is a
“reasonable possibility” that the error might have contributed to the trial court’s
revocation decision. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); see also Davis v. State,
268 S.W.3d 683, 706–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (“In applying a
rule 44.2(a) harm analysis to [evidence] erroneously admitted over the
defendant’s Confrontation Clause objection, the Court of Criminal Appeals has
instructed us that if the verdict or punishment would have been the same absent
the error then the error is harmless.”).
Appellant argues that he was harmed by the admission of State’s Exhibit 1
because it contained statements establishing that at the time of his placement on
6
community supervision, Reyna did not have custody of her and appellant’s
children. 8 He argues that these statements were important to the issue of
revocation because the community supervision condition at issue stated that he
could contact Reyna only for the purpose of arranging visitation with the children
and that if Reyna did not have custody of them, he could not have any
communication with her. Appellant contends,
Due to the wording of the sole condition of probation alleged to have
been violated, [his] knowledge and understanding, or lack thereof, of
who had custody of the children [was] a key element the State [was
required to] prove on both counts. . . .
....
. . . [T]he alleged violations of probation by [a]ppellant hinge
on what he knew and understood: Did [a]ppellant know [Reyna] did
not have temporary custody of the children after December 17,
2014?
For two reasons, we conclude that appellant could not have been harmed
on this theory by the admission of State’s Exhibit 1. First, as appellant
recognizes in his brief, his knowledge of the custody status of the children at the
time of his placement on community supervision was established during the
8
For example, State’s Exhibit 1 contains the following statement to
appellant by a prosecutor:
[Reyna] does not have control of the kids right now, they’re not in
her custody, they’re not in her care. So there’s absolutely no reason
at all whatsoever for you to be contacting her in any manner in
person, by phone, by email, by IM, any other sort of electronic
communication any way, any form at all. And that’s what the
conditions lay out. Okay? You need to move on with your life, let
her move on with hers, and that’s it.
7
revocation hearing by evidence other than State’s Exhibit 1. Cf. Sandone v.
State, 394 S.W.3d 788, 794 (Tex. App.—Fort Worth 2013, no pet.) (“The
improper admission of evidence is harmless if the same or similar evidence is
admitted without objection at another point in the trial.”); cf. also Sanders, 422
S.W.3d at 817–18 (concluding that any error in the admission of a statement in
violation of the defendant’s right to confrontation was harmless in view of other
uncontroverted, unobjected-to evidence that established the same facts). Reyna
testified that prior to the date that appellant’s community supervision began, her
parents temporarily had custody of the children, and she informed appellant of
this fact. She later explained that appellant had attended the custody hearing in
which her parents were granted temporary custody and that he had signed an
agreement supporting that result. Reyna stated that prior to appellant’s
placement on community supervision, a custody order had stated that he was to
arrange visitation through her parents, not through her. Reyna’s father confirmed
in his testimony that before being placed on community supervision, appellant
knew that Reyna did not have custody of the children because he “agreed to the
orders” concerning the children’s custody.
Second, the record contains abundant evidence of contacts made by
appellant to Reyna that had nothing to do with the children’s custody and
therefore unquestionably violated the condition at issue. On the day after his
community supervision began, appellant wrote the following message to Reyna
through Facebook:
8
So this is really how u want it to be[?] What the da said was really
what u wanted[?] U want absolute nothing to do with me ever[?] I
guess u have moved on and u are over me[?] I am having a really
hard time with this . . . . I know this message could put me in prison
for 10 yrs and [if] that’s what u feel u need to do so be it, I just can’t
believe u really want this . . . .
Appellant’s letters to Reyna also concerned several matters unrelated to the
children’s custody or visitation, including his disagreement with Reyna’s decision
to report him for previously contacting her. Appellant’s communications with
Reyna that had no relation to the children’s custody or visitation matters renders
his understanding of the custody status of the children superfluous to the trial
court’s determination to revoke his community supervision. See Howard v. State,
706 S.W.2d 168, 170 (Tex. App.—Fort Worth 1986, pet. ref’d) (stating that
community supervision may be revoked on proof of only one violation of the
conditions).
Thus, assuming, without deciding, that the trial court violated appellant's
right of confrontation by admitting State’s Exhibit 1, we hold beyond a reasonable
doubt that the error could not have contributed to the trial court’s decision to
revoke his community supervision. See Tex. R. App. P. 44.2(a). We overrule
appellant’s only issue.
9
Conclusion
Having overruled appellant’s only issue, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 3, 2016
10