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 County, Texas

Trial Court No. 1690529R

Before Bassel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Bassel

BRIAN KRISTOFER COLLINS, Appellant

V. 

THE STATE OF TEXAS
2

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.
3

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.
4

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 Two2 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).
5

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
6

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 thirddegree 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 
7

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 priorconviction 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 
8

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”).
9

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 casein-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
10

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.
11

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 
12

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