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 OPINION1

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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).
2

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.
3

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.
4

. . . .

[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.”
5

[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 
6

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 
7

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.
8

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:
9

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.
10

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