Opinion issued December 28, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00076-CR

———————————

BRIAN KENNETH BULLOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1610898

MEMORANDUM O P I N I O N

A jury convicted Brian Kenneth Bullock of capital murder, and the trial 

court assessed his punishment at life imprisonment without the possibility of 

parole. TEX. PENAL CODE § 19.03(a)(7) (stating person commits capital murder if 

he murders more than one person during same criminal transaction); TEX. PENAL 
2

CODE § 12.31(a)(2) (stating the punishment for capital murder is life imprisonment

without parole or death). On appeal he argues that the trial court reversibly erred 

by admitting a recording containing statements of one of the decedents. Bullock 

contends that the trial court abused its discretion by finding, under the doctrine of 

forfeiture by wrongdoing, that he had forfeited his right to confront the witness. He 

also argues that the judgment should be modified to reflect that the court, rather 

than the jury, assessed his punishment. We modify the judgment to reflect that the 

court assessed punishment and affirm the judgment as modified.

Background

In early November 2018, Bullock used a tactical knife to stab and slash 

Michelle Bullock and Mark Kiel to death. Bullock had been married to Michelle 

for six years, and they had three small children. By 2018, they were not living

together and were estranged, but Bullock had hoped to reconcile with Michelle. 

At trial, the jury heard from Michelle’s friends, Bullock’s mother, and law 

enforcement officials. A detective captured and reviewed communication between 

Bullock and Michelle from June 2018 until November 2018. He testified that he 

had reviewed thousands of email and text communications by and between 

Michelle and Bullock. The detective had also reviewed Michelle’s Facebook

account and messages. Many of these communications were admitted into 

evidence. 
3

The communication between Michelle and Bullock established that Bullock 

had been physically abusive toward Michelle. In 2015, Bullock kicked and 

stomped Michelle, leaving noticeable bruises. In June 2018, Michelle moved out of 

Bullock’s mother’s home after Bullock assaulted her there. A few days after the 

assault, Michelle called 911 to report it. Bullock was charged with assault as a 

result, and that charge was pending at the time of the murders. Between June and 

November, Bullock constantly contacted Michelle. Michelle stated that she wanted 

a divorce, and by November, she rented her own housing in Tomball.

Bullock was emotionally abusive. The email communication showed 

Bullock’s threats and harassment. Neither side disputes that Michelle was a sex 

worker. The communications 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 crash; how about you prostitute?”

In the month preceding Michelle’s death, Bullock confronted her at a bar. 

Michelle’s friend, who was there, testified that Bullock told Michelle that he was 

tired of her embarrassing him. He told Michelle that her time was running out or 

“almost up.” When Michelle asked why he was there, he responded that her clock 

was ticking. He then put his beer down on a bar so hard that some of it spilled out 

of the glass, and he left. Michelle and her friend left the bar, and the friend stayed 

with Michelle for the rest of the evening because Michelle did not feel safe. 
4

A week before the murders, Bullock warned Michelle: “I don’t think you 

understand how much effort it takes for me to stay reasonably calm.” Three days 

before the murder, Bullock messaged Michelle: “Somebody has to go for broke. 

Guess I’m that guy. Goodluck whore.”

Leading up to the weekend of November 4, 2018, Michelle was concerned 

for her safety. Bullock’s father had warned Michelle that Bullock was coming to 

the Houston area from Dallas. A friend testified that she was in communication

with Michelle throughout the weekend and had worked out a safety plan with her. 

Michelle told her landlord to look out for Bullock. She attempted to hide by getting 

a hotel room and leaving her car in a parking lot away from her home. Initially, 

Bullock did not know where Michelle lived, but by the end of the weekend, he

found her. 

Bullock arrived at Michelle’s home unannounced when Michelle was there. 

He was upset and wanted to confront her. He had previously told Michelle that he 

did not like seeing her with other men. Mark Kiel was at Michelle’s house. Kiel 

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

“exchanging services” with Michelle. Bullock stabbed or slashed Kiel seventeen 

times. He stabbed or slashed Michelle eight times. Both Michelle and Kiel were 

stabbed in the throat. Both tried to flee, but they died on the walkway outside 

Michelle’s house. 
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After stabbing Mark and Michelle, Bullock cleaned himself up inside the 

house. He then used his phone to call 911 and report the stabbing. He did not 

reference being attacked by Michelle in the call. Bullock drove to a police station 

and surrendered. On the way to the police station, Bullock’s phone “accidentally 

flew out the window” and was never recovered. Bullock testified that he did not 

know where it was. 

At trial, Bullock did not dispute that he used a knife to kill Michelle and 

Mark. He argued instead that he did so in self-defense. He testified that Mark and

Michelle ambushed him, and that Mark was going to use a boxcutter to attack him. 

The jury found Bullock guilty of capital murder. The trial court assessed his 

punishment at life imprisonment. 

Forfeiture by Wrongdoing

On appeal, Bullock contends that the trial court abused its discretion in 

finding that he wrongfully procured the unavailability of a witness and admitting a 

recording of Michelle’s 911 call though she was unavailable to testify. He argues 

that admitting the evidence violated his Sixth Amendment right to confront the 

witnesses against him and that the evidence was hearsay. We disagree.

A. Standard of Review

A defendant in a criminal prosecution has a Sixth Amendment right to be 

confronted with the witnesses against him. Crawford v. Washington, 541 U.S. 36, 
6

68–69 (2004); Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015). 

Under the Confrontation Clause, “testimonial” statements, those made under 

circumstances that would lead an objective witness to reasonably believe they 

would be available for use at a later trial, are inadmissible at trial unless the 

witness who made them either takes the stand to be cross examined or is 

unavailable and the defendant had a prior opportunity to cross examine the witness. 

Paredes, 462 S.W.3d at 514.

Relevant to this appeal, an exception to this principle is the forfeiture by 

wrongdoing doctrine, which provides that a defendant is estopped from asserting 

his right to confrontation when he has wrongfully procured the unavailability of 

the witness. Giles v. California, 554 U.S. 353, 359 (2008); Davis v. Washington, 

547 U.S. 813, 833 (2006) (reasoning that “one who obtains the absence of a 

witness by wrongdoing forfeits the constitutional right to confrontation”); Brown v. 

State, 618 S.W.3d 352, 355 (Tex. Crim. App. 2021) (stating forfeiture by 

wrongdoing exempts statement from restrictions of Confrontation Clause). The 

doctrine of forfeiture by wrongdoing is based on the principle that tampering with 

a witness “should . . . estop the tamperer from making any objection based on the 

results of his own chicanery.” Colone v. State, 573 S.W.3d 249, 264–65 (Tex. 

Crim. App. 2019) (quotation omitted). 
7

Article 38.49 of the Texas Code of Criminal Procedure codifies the 

forfeiture by wrongdoing doctrine. Brown, 618 S.W.3d at 355. It states that a party 

who wrongfully procures the unavailability of a witness forfeits the right to object 

to the admissibility of evidence based on that unavailability. TEX. CODE CRIM.

PROC. art. 38.49(a)(2). The exception applies only “when the defendant engaged in 

conduct designed to prevent the witness from testifying.” Giles, 554 U.S. at 359 

(emphasis in original). In addition, the party putting forth the evidence, in this case 

the State, must prove that the defendant intended to prevent the witness from 

testifying. Id. at 361–62. The State is not required to show that the actor’s sole 

intent was to wrongfully cause the witness’s unavailability. TEX. CODE CRIM.

PROC. art. 38.49 (d)(1). 

Because the forfeiture by wrongdoing doctrine concerns the admission of 

otherwise inadmissible evidence, we review a trial court’s admission of evidence 

under the doctrine for an abuse of discretion. Shepherd v. State, 489 S.W.3d 559, 

572 (Tex. App.—Texarkana 2016, pet. ref’d). We will uphold the trial court’s

ruling if there is some evidence to support the trial court’s decision and it is correct 

under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d

401, 405 (Tex. Crim. App. 2003) (stating appellate courts must uphold evidentiary 

rulings if they are correct under any theory of law supported by record regardless 

of what reason trial court gives); Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. 
8

App. 2002) (stating trial court does not abuse its discretion by admitting evidence 

if there is some evidence to support trial court’s decision). When assessing

evidence regarding acts alleged to have procured a witness’s unavailability, we 

draw all reasonable 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 admit a recording of a 911 call by Michelle reporting the 

June 2018 assault. On the call, Michelle states that two 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 and wanted her phone. He chased her into 

the street where he ripped her shirt off and tried to grab her. When Michelle 

returned to the house, he followed her inside and threw her against the wall. 

Michelle described the bruises on her body for the operator. She confirmed that the 

incident happened two days earlier, and that Bullock’s mother was present at the 

time of the assault. She told the operator that she had waited to call until after

Bullock left town and that he was in Massachusetts. The operator took biographical

information and confirmed that Michelle did not need an ambulance. The operator 

told Michelle that an officer 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 admissible because Bullock procured Michelle’s 

unavailability to testify in the assault case by murdering her. The State argued that 

the abusive nature of their relationship was reflected in their email communication

and Michelle’s text and Facebook messages.

Bullock responded that he had no reason to make Michelle unavailable 

because Michelle had indicated that she had no intention to testify against him. As 

evidence, Bullock pointed to an email where he notified Michelle of a court date in 

the pending assault case, and she responded that she had no intention of testifying. 

He argued that he did not tell her to lie, and she did not indicate that she had fears 

of testifying. He also mentioned that after the charge brought against him, he 

traveled with Michelle to Puerto Rico and continued a sexual relationship with her. 

He maintained that the act of killing Michelle was self-defense, not done to prevent 

her from testifying. The State responded by pointing to the history of abuse shown 

in the email communication between Michelle and Bullock. The State argued that 

the abusive relationship between them ended in murder, it urged the trial court to

consider the history of domestic violence when determining Bullock’s intent to 

procure Michelle’s unavailability. The trial court agreed with the State and found 

there was sufficient evidence to show that Bullock intended to make Michelle 

unavailable to testify against him.
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C. Analysis

The parties agree that Michelle’s statements during the 911 call were 

testimonial. They disagree as to whether the trial court heard sufficient evidence to 

conclude that at least some of Bullock’s intent in killing Michelle was to make her 

unavailable or prevent her from testifying in the pending assault matter against 

him. 

The record includes some evidence that Bullock wrongfully procured 

Michelle’s unavailability to testify against him in the pending assault case by 

murdering her. The record includes numerous emails and text messages between 

Bullock and Michelle from June to November 2018. Those emails demonstrate the 

abusive dynamics of Bullock’s relationship with Michelle and Bullock’s attempts 

at manipulating her. 

In June preceding her death, Michelle reported that Bullock assaulted her, 

leading to a pending charge against Bullock for family violence. Michelle 

separated from Bullock. Between that time and her death, Bullock sought to 

reconcile with her. They were in regular communication by email, with Bullock 

often emailing Michelle repeatedly throughout the day and night. The record 

reflects evidence of an abusive cycle in their communications. Often the subject of 

the same email chain changes from everyday issues, like coparenting and 

insurance, to Bullock threatening and harassing Michelle. 
11

The evidence shows Bullock regularly berated Michelle for her work as a

sex worker, calling her names in their communications. Bullock regularly 

threatened Michelle about her probation.

* After Michelle called the police to report 

the assault in June, Bullock reminded Michelle that she is on probation and

threatened that unless she drops the charges, she will go to prison. He condemned

her for “play[ing] a victim” and victimizing him. He blamed her and claimed that

she was ruining his life. Bullock threatened Michelle in August 2018, stating 

“good luck with lying” and that he was sure her parole officer would find her 

convincing. 

The record reflects Michelle’s attempts to keep the peace with Bullock.

When Bullock brings up that Michelle stayed with him after the assault and had

sex with him, Michelle responds that she did so “because 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 with Bullock. In the months 

before the murder, she maintained that they were separated, and she wanted to 

divorce him. Though he emailed her multiple times a day and through the night, 

Michelle’s responses were curt. Bullock, unhappy with Michelle’s limited 

* Michelle was on probation for child endangerment. She often communicated to 

Bullock that she had changed since her conviction and was working on bettering 

herself. Some of her friends testified at trial that they had met her as part of a local 

Alcoholics Anonymous group. 
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responses, described them in an email as “me saying something and you going 

‘LOL blah blah.’”

In the weeks leading up to her murder, Bullock’s communication with 

Michelle included more physical threats. A week before the murder, he wrote, “I 

don’t think you understand how much effort it takes for me to stay reasonably 

calm.” Three days before the murders, Bullock wrote Michelle: “Somebody has to 

go for broke. Guess I’m that guy. Goodluck whore.” Just weeks before her death,

Bullock confronted Michelle at a bar and threatened to send her to prison. 

On appeal, Bullock argues that Michelle was not concerned about testifying, 

therefore he could not have been motivated to make her unavailable. Bullock relies 

on an email message from Michelle on October 18, 2018. In the email, Michelle 

tells him that she will not be testifying against him in the assault case.

The State argues that the nature of the abusive relationship between Bullock 

and Michelle cautions against taking her statements in a single email as indicative

that she would not be testifying. The State points out that many times Michelle 

seems to be attempting to placate Bullock to prevent him from lashing out at her. 

The State also argues that it is not necessary for Bullock to be fully motivated to 

procure Michelle’s absence to prevent her from testifying. Instead, the State argues 

that it was reasonable for the trial court to believe, considering Bullock’s 

relationship with Michelle and the pending assault charge against him at the time, 
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that Bullock was at least partially motivated by an intent to make Michelle 

unavailable to testify against him. 

Appellate courts must affirm an evidentiary ruling if the ruling is supported 

by the record and correct 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 court’s ruling, supports an inference that part of the reason that Bullock 

stabbed Michelle to death was to prevent her from testifying against him. 

Shepherd, 489 S.W.3d at 575 (upholding trial court’s ruling that defendant made 

witness unavailable by shooting her); see also Dominguez v. State, No. 05-20-

00968-CR, 2022 WL 3024330, at *5 (Tex. App.—Dallas July 29, 2022, no pet.)

(mem. op.) (holding trial court did not err in upholding forfeiture by wrongdoing 

finding when evidence showed witness, who was in relationship with defendant,

was afraid of defendant and defendant had repeatedly threatened and abused her).

The trial court’s decision to overrule Bullock’s Confrontation Clause and hearsay 

objections to the admission of the 911 call recording was correct because the outof–court statements were made by Michelle, the witness whose unavailability

Bullock wrongfully procured. The trial court did not abuse its discretion by 

concluding that the State showed by a preponderance of the evidence that Bullock 

wrongfully procured Michelle’s unavailability at trial. Accordingly, the trial court
14

did not abuse its discretion by admitting Michelle’s out-of-court statement in the 

911 call. We overrule Bullock’s first issue.

Correction of Judgment

In his second issue, Bullock claims that the judgment incorrectly reflects that 

his punishment was assessed by the jury instead of the trial court. The State agrees 

that the judgment should reflect that punishment was assessed by the trial court. 

This court has the power to modify an incorrect judgment to make the record 

speak the truth when we have the necessary information to do so. TEX. R. APP. P.

43.2(b); Cazarez v. State, 606 S.W.3d 549, 557–58 (Tex. App.—Houston [1st 

Dist.] 2020, no pet.). Bullock was convicted of capital murder, which results in an 

automatic sentence of life without parole. TEX. PENAL CODE § 12.31(a)(2). The 

trial court assessed the punishment. We agree that the judgment should be 

corrected to reflect that punishment was assessed by the court, rather than the jury. 

Conclusion

We modify the judgment to reflect that punishment was assessed by the 

court, and we affirm the judgment as modified. 

Peter Kelly

Justice

Panel consists of Justices Kelly, Hightower, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).