Opinion issued D ecember 2 8 , 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00076
- CR

——————————— BRIAN KENNETH BULLOCK , Appella nt

V. TH E STATE OF TEXAS , Appell e e
On Appeal from the 184th District Court

Harris County, T exas Trial Court Ca se No. 1610898

MEMORANDUM O P I N I O N A jury convicted Brian Kenneth Bullock of capital murder , and the tri al court assessed his punishment at life i mprisonment without the possibility of parole

. T EX
. P ENAL C ODE § 19.03 (a) (7) ( stating perso n commits capital murder if he murders more than one person during same criminal transaction) ; T EX
. P ENAL2

C ODE § 12.31(a)(2 ) (stating the punishment for c apital murder is life imprisonment without parole or death )

. On appeal he ar gues that the trial c ou rt re versibly erred by admitting a recording containing statem ents of one of the dec eden ts . Bullock contends that the trial cou rt abused its discretion by finding , under the doctrine of forfeiture by wrongdoing, that he had forfeited his right to confron t t he w itness . He also argues that the judgme nt should be modified to reflect that the court, rather than the jur y , assessed his punishment. We modify the judgment to reflect that the court assessed punishment and affirm the judgment as modified. Backgroun d I n ea rly November 2018, Bullock used a tact ical knife to stab and sla sh
Michelle Bullock and M ark Kiel to death. Bullock had been married to Michelle
f or six year s , and they had three small children. By 2018, they were not living together and were estran ge d , bu t Bul lock had hoped to reconcile with Michelle

. At trial, the jury hea rd from Michelle ’ s friends , Bullock ’ s mother, and law enforcemen t officials . A detective captured and reviewed communication between Bullock and Mi chelle from June 2018 until No vember 2 0 18 . He testified that he had reviewed thousands of email and text communications by and between Michelle and Bullock. The de tective had also reviewed Michelle ’ s Facebook

acco unt and messages. Many of these communicati ons were admitted into evidenc e.3

The c om munication between M i chell e and B ullock established that Bullock had been phys ically abusive toward M i chelle. In 2015, Bullock kicked and stomped Michelle, leaving noticeable bruises. In June 2018, M i chelle moved ou t of
B u llock ’ s mother’s home a fter Bul l oc k assaulted her there. A f ew days after the assault, Michelle called 911 to re port it. Bullock was charged with assault a s a result, a nd that charge was pending at the time of the murders. Between June and November, Bullock constantl y contacted Michelle

. M ichelle stated that she wanted a divorce, and by November, s he rented her own housi ng in Tomball. Bullock was emotionally abusive. The email communication showed Bullock’s threats and harass ment. Neither side disputes that Michell e was a s ex

wor ker. The co mmunications show that Bullock regularly threatened Michelle about it. In one email , he threatened to report Michelle ’ s sex work , and he said,

“ I’m willing to go to the scene of the cras h; how about you prostitute ? ”
In the month p receding Michelle ’ s d eath, Bul lo ck confronted her at a bar. Michelle ’ s friend , who was there , testified that Bullock told Michelle that h e was tired of her embarrassing him. He told Michelle that her time was running out or

“ almost up. ” When Michelle asked wh y he was ther e, he responded that her cl ock was ticking. He then put his beer down on a bar so hard that some of it spilled out
of the gl ass , and he left

. Michelle and her friend left the bar , and the friend stayed with Michell e for the rest of the evening b ecause M i chelle did not f eel safe.4

A week before the m urders, Bullock warned Michelle : “ I don ’ t think you unders tand ho w much effort it takes for me to stay reason ably calm. ” Three days before the murder, Bullock messaged Michelle : “ Som ebody has to go for broke.
Guess I ’ m t hat guy . Goodluck whore. ” Leading up to the weekend of N ovember 4, 2018, M i chelle was concerned for her safety. Bullock ’ s father had war ned Mic helle that Bullock was coming to the Houston area from Dallas. A frien d testified tha t she was in communicati o n with Michelle throughout the weekend and had worked out a safety plan with he r. Mich elle told her landlord to look out for Bullock. S h e attempte d to hide by getting
a hotel room and leaving her car in a parking lot a way from her home

. Initially, Bullock di d not know where M i chelle lived, but by the end of the weekend, he found her. Bullock arrived at Michelle ’ s home u n announced when Michelle was there

. He was upset and wanted to c onfront her. He h ad previously told Michelle that he did not like seeing her wi th other men . Mark Kiel was at Michelle ’ s house. K i el

was a handyman , and there was evidence from their communications that he was

“ ex changing services ” with Michelle. Bullock stabbed or slashed Kiel seventeen times . H e stabbed or slashed M i chelle ei ght times

. Bot h Michelle and Kiel were stabbed in the th roat. Both tried to flee, but they died on the walkway outside
M i chelle ’ s hou se.5

After stabbing Ma rk and Michelle, Bullock cleaned himself up inside the house. He then used his phone to call 911 and re port the stab bing . He did not
refer ence being attac ke d by Michelle in the call. Bullock drove to a p olice station and surrendered . On the way to the polic e station, Bullock ’ s ph one “ accidentally
f lew out the window ” a nd was never recovered. Bullock test ified that he did not know where it wa s. A t trial, Bu ll ock did not dispute that he used a knife to kill Michelle and Mark. He argue d instead that he did so in self

- defense. He testified that Mark an d Michelle ambushed him, and that Mark was going to use a box cutter to attack him. The jury f

ound Bullock g ui lt y o f capital murder. The trial court assessed hi s punishment at life imprisonment. Forfeiture by Wro n gdoing On appeal, Bullock contends that t he trial court abused its discretion in finding that he w rongfully procured the unavailability of a wi tn ess and admitting a recording of Michelle ’ s 911 call though she was unavailable to testify. He argues that admitting the evide nce viol ated his Sixth Amendment right t o confront the witnesses against him and th at the evidence was hearsay

. We disa gree. A. Standard o f Review A defendant in a criminal prosecution has a S ixth Amendment right to be confronted with the witnesses against hi m. Crawf ord v. Washin gton , 541 U.S. 36,6

68

– 69 (20 04) ; Pared es v. State , 462 S.W.3d 510, 514 (Tex. Crim. App. 2015). Under the Confronta ti on Clause, “ testimonial ” statements, those made unde r circumstances that would lead an objective witness to reasonably believe they would be avail able for use at a later trial , are inad missible at trial unless the witness who made them either takes the s ta nd to be cross exam ined or is unavailable and the de fendant had a prior opportunity to cross examine the witness. Pared es , 462 S.W.3d at 514

. Rel evant to this appeal, an exception to this principle is the forfeiture by wrongdoing doctrine, which pr ovide s tha t a defendant is e stopped from asse rting
his rig ht to confrontation when he has wrongfully procured the unavailabili ty of th e witne ss. Gi les v. California , 554 U.S. 353, 359 (2008); Davis v. Washingt on , 547 U

. S. 813, 833 (2006) (reasoning that “ one wh o obtains the absence of a witness by wrongdoing forfe its the const itutional right to confrontation ” ); Brown v.
State , 61 8 S.W.3 d 352, 355 (Te x. Crim. App. 2021) (stating forfeiture by wrongdoing exempts statement f rom restrictions of Confrontati on Clause )

. The
doctrine of forfeiture by wrongdoing is based on the principle that tampering with a witnes s “ should . . . estop the tamperer from making any o bjection based on the results of his own chicanery

. ” C o lone v. Stat e , 573 S. W.3d 249 , 264

– 65 (Tex

. Crim . App. 2019) (quotation omitted)

.7

Article 38.49 of the Texas Code of Criminal Proce dure codifies th e forfeiture by wr ongdoing doctri ne . Brown , 618 S.W.3d at 355. It states that a party who wrongfully procur es the unavaila bility of a witnes s forfeit s the right to object
to the admissibility of evidence bas ed on that unavailab ility. T EX
. C ODE C RIM
. P ROC
. art. 38.49(a)(2). The exception a pplies only “ wh en the defendant engaged in
condu ct designed to prevent the witness f rom testifying

. ” Giles , 554 U.S. a t 359 (e mphasis in original). In addition, the party putting forth th e evidence, in this case the State, must prove that the defendant intended to prevent the witness from testif ying. Id. at 361

– 62. Th e St ate is not required to show that the actor ’ s sole intent was to wrong fully cause the witness ’ s unavai la bility

. T EX
. C ODE C RIM
. P ROC
. art. 38.49 (d)(1). Because the forfeiture by wrongdoing doctrine concerns the admission of
othe rwise inadmi ssible evidence , we re view a trial court’s admission of evidence under the doctrine for an abuse of discret ion. S hep he rd v. State , 489 S.W.3d 559, 572 (Te x. App.

—

Texarkana 2016, pet. ref ’d). We will u phold the trial court’s ruling if there is s ome evidence to support the trial court ’ s decision and it is correct under any theory of law app licable to the case. Armenda riz v. State , 123 S.W.3d 401, 405 (Tex. Cr im. App. 2003) (stating appellate courts must u phold evidentiary rulings if they are c orrect under any theory of law support ed by record regardless of what reason trial court gives) ; Osbourn v. State , 92 S .W.3d 531 , 53 8 (Tex. Crim.8

App. 2002) (st ating trial cour t does not abuse its discretion by admitting evidence if there is some evidence to support trial court ’ s de cision). Wh en assessing evidence regarding acts alleged to have pro cured a witne ss ’ s unava ilability , we d ra w all r easonable inferences in favor of the trial court’s ruling

. See Brown , 618 S.W.3d at 357.
B. Article 38.49 hearing The State sought to a dmit a recording of a 911 call by Michell e repor ting the June 2018 assault. O n the call, Michelle states t hat tw o days prior, she had returned home with her two

- year - old to Bullock , and Bullock was mad that she had been gone for three hours. He became violent an d wanted h er phone. H e chased her into the street where he ripped her shirt off and tried to grab her

. W h e n Michelle returned to the house , he followed her inside and threw her against the wall. Michelle described the bruises on her b ody f or the operator. S h e c onfirmed that the
incident happened two days earlier , and that Bullock ’ s mother was present a t th e time of the assault . S h e told the o perator that she had waited to call until after Bullock left town and that he was in Massachus et ts. The operator took biographical information and confirme d that M i chelle did not need an ambulan ce. The operator
told Mic he lle that an of ficer would be sent out to speak with her. Bullock was charged with misdemeanor assault.9

At the hearing regarding admission of the 911 call , the State argued that the statements in the 911 call were a dmissible beca use Bullock procured Mich el le ’ s unavailab ility to testify in the assault case by murdering her

. The State argued that the abusive nature of their relationsh ip was reflect ed in their email comm unication and Michelle ’ s text and Facebook m essages. Bullock re sponded that he had no re as on to make Mi chelle unavailable because Michelle had indicated that she had no intention to testify against hi m. As evidence, Bul lock pointed to an email w here he not ified Michelle of a court date in the pending as sault case, and she responded that she h ad no intention of testifying.
H e argue d that he did not tell her to lie, and she did no t indicate that she had fears of testifying . He also mentioned that after the ch arge brought against him, he traveled with Michelle to Puerto Rico an d cont inu ed a sex ua l relationship with h er . He mai ntained that the act of killing Michelle was self

- defense, not done to prevent her from testifying . T h e State responded by pointing to th e history of abuse shown in the email communication between Michelle and Bu llock. T he St ate argued that
the a busive relationship between them ended in murder, it urged the trial court to consider the hi story of domestic violence when determining Bullock ’ s intent to procure Michelle ’ s unavailability. The tr ial court agree d wi th the State a nd foun d there was sufficient evi dence to show that B u llock intended to make Michelle unavailable to tes tify against h im

.10

C. Analysis T he parties agree that Michelle ’ s statem ents during the 911 call wer e
t estimonial . They dis agree as to w hether the tri al c ou rt hear d sufficient evidence to conclude that at least some of Bullock ’ s intent in killing M i chell e was to make her

un available or pre vent her from testifying in the pendin g assault matter ag ainst him. The record includes some evidence that Bullock wron g f ully pr ocured
Michelle ’ s unavailability to testify against him in th e pending assault case by murdering her. Th e recor d includes numerous emails and text messages between
B ullock and Michelle from June to November 2018. Tho se emails demonstrate the
abusi ve dynami cs of Bullock ’ s rel ati onship with Michelle and Bullock ’ s attemp t s at manipulat ing her

. In J une precedi ng her death, Michelle reported that Bullock assaulted her , le ading to a p ending charge against Bullock for family violence

. Michelle
separ at ed from Bullock . Between that time and her death, Bullock sought to reconcile with her. They were in regular commun ication by email, with B u llock ofte n emailing Mi chelle rep e ate dly throughout the day and nig ht. Th e record
reflects evidence of an a busive cy cle in their communications. Often the subject of the same email chain changes from ever yday issues, like coparenti ng and insurance , to Bulloc k threatening and harassing Miche ll e.11

The evidence shows B ullock regularly berated M iche lle for h e r w o r k a s a

s ex worker , calling her names in their communications

. Bullock regularly
threat ened Michell e about her probation

. * Aft er Michelle called the police to report the assault in June , B ullock remind ed Michelle that she is on probation and thr eaten ed that unless sh e drops the charges , she will go to prison. He condemn ed
her for “ play[ ing ] a victim ” an d victimizing him. He blam e d her and claim ed that she wa s ruining his life. Bullock thr ea tened Michelle in August 2018 , stating

“ good luck with lying ” and tha t he was s ure her parole officer would find her convincing

. T he record reflects M ichelle ’ s attempts to keep the peace with Bull ock

. When Bullock brings up that Michelle stayed with him a fter the assau lt and had sex with him, Michelle respon ds that she did so “ bec au se otherwise you wouldn ’ t have left. ” She told her friend that she had to “ keep being nice ” to Bullock because she was on probation. She limited her interactions w ith Bullock

. I n the months bef ore the murder , she maintained that they were separated , and she w an ted to divorce him. Though he emailed her m ultiple times a day and through the night , Mi chelle ’ s responses we re curt . Bulloc k, unha ppy with Michelle ’ s lim ited

* Michelle was on probation for chil d endange rment

. She o ften communicated to Bullock that she had changed since her conviction and was working on bettering herself. Some of her friends testif ied at trial that they ha d met her as part of a local Alcoholics Anonymous group

.12

res pon ses, de scribed them in an email as “ m e saying something and you going

‘ LOL blah blah

. ’ ”
In the weeks leading up to her m urder, Bullock ’ s communication with Michelle include d more physical threats. A week befo re the murder, he wrote, “ I don ’ t thi nk you understand how much effort it takes for me to stay reasonably calm. ” Three days befor e the m ur ders, B ullock wrote Michelle : “ Som ebody has to go for broke. Guess I ’ m that guy. Goodluck whore

. ” Just weeks before her death, Bullock confront ed M i chelle at a bar and thr e atened to s end her to prison. On appeal, B ullock argues that Michelle was not con ce rned about testifyi ng, therefore he could not have bee n mo tivated to make her unavailable. Bull ock relies

on a n email message from Michelle on October 18, 20 18 . In the emai l, M i chelle tells him that she will not be testifying against him in the assault c as e. T h e State argues that the nature of the a bus ive relationship b etween Bullo ck and Michelle cautions again st ta king her statements in a single email as indicative that sh e would not b e testifying. The State points out that many times Michelle
seems to be attempting to placate B u llock to prevent hi m from lashing out at her.
T he Sta te also argues that it is not necessary for B u llock to be fully motivated to procure Michelle ’ s absence to prevent her from testifying. I ns tead, th e State ar gues that it was re as onable for the trial court to believe, considering Bullock ’ s relationship with Michelle and the pending assa ult charge against him at the time ,13

that Bullock was at least pa rtiall y motivated by an intent to make Michelle

una vailable to testify against h im. Appellate courts must affirm an evidentiary ruling if the ruling is suppo rted by the re cord an d cor rect under any theory of law applicable to the case. See Armendariz , 123 S.W.3d at 405. The evidence, viewed in the light most favorable
to the trial co urt’s ruling, supports an inference that part of the reason that Bullock stabb ed Mi chelle to death was t o prevent her from testifying against hi m . Shepherd , 489 S.W.3d at 575 ( uphol ding trial court ’ s ruling that defendant made witness unavailable by shooting her ); see also D o minguez v. State , No. 05

- 20

- 00968

- CR, 2022 WL 30 2 4 330, at *5 (Tex. App.

— Dallas July 29, 2022, no pet.) (mem. op.) ( holding trial court did not err in uphold ing forfeitu re by wrongdoing finding when evidence sh owe d witness, who was in relationship with defendant, was afraid of d efendant and defendant had repeatedly threatened and abused her ). The trial court’s decision to overrule Bullock ’ s Conf rontation Claus e and hear say objections to th e admission of the 91 1 c al l recording was correct because the out

of

– court statements were m ade by Michelle, the w it ness whose un availability Bullock wrongfully procured

. The trial court did not abuse its discre tion by conclud ing that the State showed by a preponderance of th e evid enc e that Bullock wrongfully procured Michelle ’ s unavail ability at tria l. A c cordingly, t he trial court14

did not abuse its discretion by admitting Michelle ’ s out

- of

- court statement in the 911 call. We o verrule Bullock ’ s first issue

. Correction of Judgment In hi s second issue, Bullock claims that the judgment incorrectly refle cts that
his puni shment was ass essed by the jury instead of the trial court. The State agrees that the judgment should reflect th at punishment was assessed by the trial court. This cou rt ha s the power to modify an incorrect judgment to make the record
spe ak the truth when we have the n ecessary informa tion to do so. T EX
. R. A PP
. P. 43.2(b) ; Cazarez v. State , 606 S.W.3d 549 , 557

– 58 ( Tex. App.

— Houston [1st Dist.] 2020, no pet.)

. Bullock wa s c on victed of capital murd er , which results in a n automatic sentence o f life without pa r ole. T EX
. P EN AL C ODE § 12.31(a)(2). The trial court assessed the punishment. We agree that the judgme nt s hould be corrected to reflect that punishment w as asse ssed b y the c ourt , rather than the jury. Conclusion We modify the judgment to reflect that punis hment was ass essed by the court, and we affirm the judgment as modified

.

Peter Kelly Justice
P anel consists of Justices Kelly, Hightower, and Guerra.
Do n ot publish. T EX
. R. A PP
. P. 47.2(b).