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

___________________________ No. 02

- 22

- 00252

- CR

______ _

____________________

On Appeal from Criminal District Court No. 2 Tarrant Coun ty, Texas Trial Court No. 1690529R
Before Bassel, Womack, and Wallach, JJ. M emorandum Opinion by Justice Bassel 

### B RIAN 

### K RISTOFER 

### C OLLINS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Brian Kris tofer Col lins appeals his conviction s for assault

– family violence enhanced and assault by cont act
. 1 In two issues, Collins argu es that the trial court erred by allowing evidence of his prior conviction s for family violence to be introd uced during the guilt

–

innocence phase and that even if the introduction of p r i o r
- c o n v

i c t i o n e v i d e n c e during the guilt

–

i nnocence phase was proper, th e t ria l court nevertheless erred by allowing the State to introduce evidence of two separate prior convic tio ns
— 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 p rior assault

– family violence conviction s constituted an element of the charged felony

as sault

– family violence off ense s and w ere 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. B ACK GROUND Complainant began dating Coll ins in 2014 or 2015. During the course of their dating r elationshi p, Collins comm itted multi ple acts of vi ol ence against Complainan t
. In 2015, C ol lins punche d Complainant and attempted to st rangle her. When she tried to leave to call 911, Collins p ulled her back into th e ir house by h er ha ir. Base d on this inci dent, Collins was ultimately charged and convi cted of ass ault

– family vi ol ence .

1 As m ore fully dis cussed below, C ollins was indicted for t wo counts of assault

– family violence. Following a jury trial, he wa s convicted on the second count an d convicted of the lesser

- inclu ded offense of assault b y contact o n the first count

.3 Eventually , Complain ant allowed Collins to move b ack into her home. After Collins attac ked her again, she brok e up with him.
I n 2020, a lthou gh Co mplainant and Collins were no longer dating, Comp lainan t agreed to let Collins stay at her ap artment for a few days. On e aftern oon during his stay, Collins jumped on Co mplainan t and pinne d her arms and leg s down. She tes tified that after pinn ing her down, Collins yelled and spit at her and then began cho king and smo thering her. According to Complainan t , she was unabl e
to breathe and lost co nsc iousness at one point during t he episode

. After Collins finally f ell asleep, Complainan t r an to a nearby convenience store and called police. Collins was arr ested and indicted for assault

– family violence by impedin g breath with a prior c onviction (Count One), see Tex. Penal Code Ann. § 21.01(a)(1) , (b

- 3) , and assault

– family viole nce with a prior conviction (Count Two), see id. § 21.0 1(b)(2)(A). B efore trial , Collin s objected to the p rior

- conviction alle gation in Count One of the indictmen t. Specifically, Collins objected to the State ’ s inc luding allegations

c o n cerning two di f ferent prior convictions for Counts O n e an d Two when only one such prior conv iction was necessar y , arguing that it w as “ ve ry harmful ” to Collins ’ s def ense for the Sta te “ to get to say he ’ s got not only one , but t wo prior convic tions

. ” The trial court overruled C ollins ’ s o bjection and granted him a running objection to the evi dence of the pri or conv iction alleg ed in C ount One

.4 Collins pleaded not guilty , and th e trial co urt conducted a jury trial. The j ury convicted Collins on Count Two and found him guilty of the lesser

- included offense of a ssault by contact on Count O ne. T he trial judge sentenced Collins to twenty years in prison on Count Two 2 and imposed a $500 fi ne for the assault

- by

- contact offense. This appeal followed. II. D ISC USSION On appeal, Collins raises two issues

. First, he argues that the trial court erred by allowing the State to in form the jury of his prio r 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 w ere proper for the S t ate to introduc e evi dence o f a prior conviction duri n g the guil t

–

innocence phase , the trial court

never theless er red by allow in g the State to introduce evidence of t wo separate p rior convicti ons
— one for Count One and a nother for Count Two

— when only one would have sufficed for both c ounts
. C ollins ’ s arguments lack merit. A. St andard o f Review We review a trial court ’ s deci sion to admit or exclude evid en c e under a n a buse of discr etion standard

. Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 2 003) ; Montgo mery v. S t ate , 810 S.W. 2d 372, 37 9 ( T ex. Cr im. App. 199 0). We will not reverse a

2 Alth ough the offense in Count Two is a third

- degree felony, see Tex. Penal Code Ann. § 21.01(b) (2)(A), because C ollins pled “true” to the indictment’s enhancement paragra ph alleging that he was a habitual felony offender, his Cou nt Two o ffense was punishable as a s econd

- degr ee felony, see Tex. Penal Code Ann. § 12.42(a).5 tr i al court ’ s decision to adm it or exclude eviden ce unless the r ecord shows a clear abuse of discretion. Zuliani , 97 S.W.3d at 595

. An abuse of discretion occur s only when the tria l c ourt ’ s decision was so c learly wr ong as to li e outs ide that zone within wh i ch reasonable persons m ig ht disag ree. Id. Even if a trial court improperly admits ev idence, such an error generally does not warrant reversal unless it aff e cts an appellant ’ s s ub stantial rights. See T e x. R. App. P. 44.2(b). “ A subs tantial right is affec ted when the error had a substantia l and injurio us effect o r influence in determining the jury ’ s verdict. ” Coble v. State , 330 S.W.3d 253, 280 (Tex. Crim. App

. 2010). Improper ly adm itted evidence that did not influ ence the jur y or had but a slight effect o n the verdict is harml e ss. I d. Fur t her, a trial court ’ s error in improperly admit ting evidence may be rendered harmless if other evidence that proves the same facts as the i nadmissi ble evidence is a d mitted without objection. S ee Valle v. State , 109 S.W.3d 500, 509

– 10 (Tex. C rim. App. 2003)

. B. Issue One : The P rior Conviction I s an Elem ent of th e Offense
I n his first issue, Collins argues that the trial court erred by allowing the State to inform the j u r y of the pri or conviction alleged in Count O ne of th e indictment during the guilt

–

innocence p hase of trial

. C ollins contends that the e vidence of his p rior conviction was not “ jurisdictional ” and therefore should not have be en introduce d until the tria l ’ s sentencing phas e because (1) th e State had already alleged a different prio r con vi ction in Co unt Two of the i ndictment and (2) th e prio r conviction was not
necessary to vest the trial court with jurisdiction since the Count One offense would6 have be en a third

- degree felon y even without the inclusion o f the prior

- conviction allega tion in the indictment

. See Tex. Code Crim. Proc . An n. art. 36.01 (a) (1)

. Thi s issue has been thoroughly analyzed and resolved contrary to Col lins ’ s posi tion

. B oth t he Texas Court of Crimina l Appeals and numerous intermediate appel late courts

— including th i s court

—have concluded that proof of a prior ass ault conviction is an element of the offense of felony assault

– family violence and thus

must be p roven beyond a rea so nab le doubt duri ng th e t rial ’ s g u i lt

–

in nocence phase

. See, e.g. , Holoman v. State , 620 S. W.3d 141, 14 6

– 47 (Tex. C rim. App. 2021) (holdi ng that Sect ion 22. 01(b)(2)(A) ’ s “ prior

- assault

- on
- a
- family

- member

- conviction ” pro vision

“ establ ishes an element of an a ggr avated crime and no t, alte rnatively, a punishment enhanc ement ” ); Walker v. State , No. 0 2

- 19

- 00309

- CR , 2020 WL 7 063298 , at *2

– 3 (Tex. App

. — Fort Worth Dec. 3, 2020, no pet.) (mem . op., not designated for publication) ( r ecognizing t hat “ a lmost all of the f our teen T exas intermediate appellate courts have concluded that proof of a prior assault c onviction is an element of the offense of felony ass a ult

– family vio lence ” and agreeing with these prior decisions ). Although Collins does not mention H oloman in his bri ef, he att empt s to distinguish Walker by pointing out that , unlike the present case in which the pr ior convicti on simply elev ated C ount One from a third

- degree to a second

- degree felony , Walk er ’ s p rior conviction elevated his off ense from a mere misdeme ano r to a third

degree felony. See Walker , 2020 WL 7063298, at * 1. Collins contends that because Coun t O n e would have been a f elony even without the prior convicti on
— meaning7 that the prior convi ctio n was not necessary t o vest the trial court w ith jurisdiction, see Tex. Code Crim. Proc. Ann. art. 4.05

— the prior conviction was not “ jurisdiction al ” and ther efore s hould not have been introduc ed until th e trial ’ s punishment phase , see i d. art . 36.01(a)(1). How ever , th e Texas Court of Cri min al Appeals has specifically rejected such an ad hoc method of determining the jurisdictional nature of a prio r
conviction p rovision in favor of a categ or ical approach

. See Holoman , 620 S.W.3d at 144

– 46. In Holoman , the State Pr osecuting Atto rney argu ed t hat the court should
rega rd the proof of the a ppellant ’ s prior assault

- on
- a
- fa mily

- member conviction as a
mat t er of punishment enhancem ent only because the State did not have to invo ke the Sect ion 22. 01(b)(2)(A) prior

- conviction pro vision to con fer sub ject

- matter jurisdiction on the trial court in that particular case . Id. at 146. Rejecting this argument, the T e xas Court of C rim inal App eals held that regardless of whether th e S t ate relies upon Sect ion 22.01(b)(2)(A) to invo ke th e trial court ’ s subject

- mat ter jurisdiction in a particular case , “ it is not a mere puni shment

- e nhancing aggravator. ” Id. at 146. In l ight of our prior decisio n in Walker , 2020 WL 7 063298 , at *2

– 3 , and the binding authority that speaks clearly on this i ssue from the Texas Cou rt o f Criminal App eals , see Holoman , 620 S.W.3d at 14 6

– 47 , we overrule Collins ’ s first issue. C. Issue Two : The State Was N o t Required to Alle ge the Same Prior Conviction in B oth Counts In h i s s e c o n d i s s u e , Collins argues that the trial court e r red by allowin g th e State to info rm the jury of his prior convic tion alleged in Count One because it had8 alleged a different pri or conviction in Count Tw o . 3 In essence , Collins ap p ears to

assert either (1) that the Stat e is prohibited from li stin g two different prior convictions as offense elements in two separ ate counts or (2) that if the State chooses to list different prior c on victions in two separate counts , it should neverth el ess be allowed to introduce evidence of only one of the prior c onvi ctions durin g the guilt

–

innocence phase of trial. 4 How ever, Collins fail s to cite any relevant aut hority supporting eith er of these pr op ositi ons. In stead , Colli ns reli es primarily on t wo cases , Tamez v. State , 11 S.W.3d 198 (Te x. Crim . App. 2002) , an d T a ylor v. State , 442 S.W.3d 747 (Tex. App.

— Amarillo 2014, pet. ref ’ d

) , that are not on point

. In T amez , the appellant was charged wit h one count of dri ving w hile intoxicate d (DWI)

. 11 S.W. 3d at 199

. U nder Penal Code Section 49.09(b ) , DWI is a th ird

- degree fe lony if the defendant has two prior DWI

3 We note that C ollins ’ s argume nt is l imited to the admission of the evidence of his p rior conviction alleged in Count One ; he do es not challenge th e admissio n 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 forfe ited any error concerning it s adm ission. S ee Tex. R. App . P. 33 .1(a) ; Lovill v. State , 319 S.W.3d 687, 691 (Tex. Crim. App. 2009)

. 4 T o the exten t that Colli ns asserts that the trial court ’ s admission of th e ev id ence of his prior conviction all e ged in Coun t One was erroneou s under Rule 4 0 3 bec a u se it s proba tive value was outw eigh e d by the dan ger of un fair prejudice, see Tex. R. E vid. 403, he has forfeited that compla int beca use he f ai led to assert a R ule 403 ob ject ion at trial. See Tex. R. App. P. 33 .1 (a); Lovill , 319 S.W.3d at 69 1

– 92 ( no ting that a n issue is not preserved “i f the legal basis of the complaint raised on appeal varies from the complaint made at trial ” ) ; see al so Wilso n v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (admonishing that for error to be preserved, th e appell ant’s “poi nt of error on appeal must c omport with the objection made at trial”)

.9 convictions. Tex. Penal Code Ann. § 49.09(b)

. Although the statute only required

two prior co nvic tions to elevate appellant ’ s DWI offense to a felony , the indictment alleged t hat the appe l lant had six prior convi ct ions. Tam ez , 11 S.W.3d at 199. Before trial, th e appellant offe red to sti pulate to two pr evious convictions if the trial cou rt would proh ibit the Sta te from ment ioning his prior con vic tions to the jur y, but the

t rial court refu sed. Id. Acc ordingly , d ur i ng the g uilt

–

innocence ph ase of trial, the State in formed the jury of all six of the appellant ’ s prior DWI con vic tions. Id. The Cour t of Crimin al Ap peals , holding tha t any prior convict ions “ beyond the two jurisdictional elem e nts should no t [ have ] be [ en ] re ad or proven d uring the State ’ s case
in

- ch ief , ” reversed the appellant ’ s conviction

. Id. at 202

– 03. Similarly, in Taylo r , the appe llant was charge d with one count of felony assault

– family v iolence. 442 S.W.3d at 749. Althoug h t he rele vant statute only re quired one pri or con viction to elev ate the offense to a third

- degree felony, the indictment all e ged

t wo prior convictio ns. Id. T he Amarillo C ourt of A p peals held that the trial court had abused its di scret ion by allowing the State to read both prior c onvictions to the jury durin g the trial ’ s gu ilt

–

innoce nce ph ase. Id. at 751. Both Tamez and Taylor are distinguishable f rom the pre sent case. Crucia lly, both of these cases involved one

- co unt indictments. See Tamez , 11 S.W. 3d at 199 ; T

aylor , 442 S.W.3d at 749 . Th us, these cases do not

— indeed cannot

— s tand for the prop osition that th e State must allege the same prior convi ction in ea ch count of a mult i

- count indictment . N or do they support the proposition that evidence proving a10 prior c onviction alleged in one count of an indic tment suffic es for another count all eging a differ ent prior conviction

. At best (from Collins ’ s standpoint ) , the se cases sta nd fo r the proposition that a trial court a buses its discretion by allowing th e State to put on evidence o f more p rior convictions than necessary t o prove the statutory elements of the offense as modified by the charging instru ment. See Curry v. Stat e , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). But the State did not violat e this p ri ncip le i n this case. The State was requ ired to prove a prior assault conviction as an element of each off ense 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 indict ment alleg ed different prio r conviction s in Counts O ne and Two, the State w as required to prove ea ch of these separate pr ior convictions beyond a rea sonable dou b t
. See Curry , 30 S.W.3d at 404 (holding that a h ypothe tically correct jury charge must set for th “ t he st atutory 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 Pla nter v. St ate , 9 S.W.3d 156 , 159 n.5 (Tex. Crim. App. 1999) ) )

. Th is is exactly what the S tate did. U nlike Tamez and Taylor , the trial court did not allow the State to present e vidence of additional prior convictions beyond tho se needed to prove the eleme nts of the charged offense s as

m odified by the indictment

. Th us, the trial court did not abuse its discret ion. S e e Zuliani , 97 S.W.3d at 595

.11 E ven if we were to conclude that the trial cour t erred b y admitting the evidence

concern ing the prior convic tion alleg ed in Co unt One , reversal would not be warranted b ecause Collins has not shown that he was harmed by the evi d ence ’ s admission. See Hankins v. State , 180 S. W.3d 177, 182 (Tex. App.

— Austin 2005, pet. ref ’ d) ( recognizing that the erro neo us admissio n of a pr i or conviction is subject to a

non
- con s titutional ha rm ana lys is) ; see also T ex. R. App. P. 44.2(b) ; Coble , 330 S.W.3d at 280

. While Collins ’ s brief sta tes in a concluso ry fashion th at “ the St ate prejudiced [h im] ” by “ inserting an entirely differe nt prior c onviction into [C ]ount [O ]ne of th [e] indictment, ” he does not state with particularity how he was harmed or how his substantial r ight s were preju diced. See Tex. R. App. P . 38.1 (i) ( requiring an appellant ’ s brief to include “ a clear and concise a rgument for the c ontentions made, with appropriate citations to authorities and to the record ” )

. Any claim of harm

conce rning the admissio n of the Count One prior

- conviction evi dence is undermine d by the fact that the jury did not convic t Colli n s of the o ffense all eged in Co u nt O ne 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 preju dicial evi dence to be harml es s error because the jury

ac quitted one of the defendants and convicted appellant of a lesser

- included offense) ; Fis h v. State , 609 S .W.3d 170 , 183 (Tex. App.

— Houston [ 14th D ist.] 2020, pet. ref ’ d

) ( “ [I] t is unlikely the jury ha rbored a r easonable doubt o n the manslaughter charge, but convicted him nonetheless based on any un fair prejudice from the extraneous offense12 evide nc e, because the jury acquitted appellant of the greater charge of murder. ” ) ; Bea n v. State , No. 13

- 01

- 030

- CR , 2001 WL 34394342 , at *2 ( Tex. App.

— Corpus C h rist i

– Edinburg Oct. 4, 2001 , no pet. ) ( no t designated for publication) ( “ Logic dictates that when the c omplained [

- ] of evidence is offered to establish proof of the greater offense, but the jury acquits the defend ant of that offense and con victs of the lesser offense, the complained [

- ] of evidence did not have a s ubstantial and injurious effect or influence on the jury ’ s verdict. ” )

. Ha ving concl uded (1) t hat there was no rule prohibiting the State from listing two dif fere nt prior convictions as offense elements in Co unts One and Two , (2) that the trial court did no t abuse it s discret ion by allowing the State to in troduc e evidence of both prior convictions , and (3) that any error in the admission of the prior convict ion all eged in Count One was h armless , we overrule Collins ’ s second issue. III
. C ONCLUSION Having ov erruled both of Collins ’ s issues, we affirm the t rial court ’ s judgment s . /s/ Dabney Bassel Dabney Bassel Just ice Do Not Publish Tex. R. App. P. 47.2(b) Delivered : July 13, 20 23