ACCEPTED 13-14-00249-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS 2/2/2015 3:44:01 AM IN THE 13TH COURT OF APPEALS DORIAN RAMIREZ CORPUS CHRISTI CLERK
2/2/2015 NO. 13-14-00249-CR DORIAN E. RAMIREZ, CLERK BY JParedes IN THE COURT OF APPEALS RECEIVED IN 13th COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI/EDINBURG, TEXAS AT CORPUS CHRISTI 2/2/2015 3:44:01 AM JUAN VELA, DORIAN E. RAMIREZ Clerk APPELLANT,
VS.
THE STATE OF TEXAS, APPELLEE.
ON APPEAL FROM THE 128TH DISTRICT COURT NUECES COUNTY, TEXAS TRIAL COURT NUMBER 13-CR-3438-A
BRIEF FOR THE STATE
Adolfo Aguilo, Jr. State Bar No. 00936750 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) adolfo.aguilo@co.nueces.tx.us Attorney for Appellee
ORAL ARGUMENT IS NOT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................... iii
STATEMENT OF FACTS ..............................................................................1
SUMMARY OF THE ARGUMENT ..............................................................9
1. Reply to Appellant’s Issue:
A. The trial court did not err in denying Appellant’s motion because Appellant was not entitled to a severance of just one of the charged offenses.
B. Appellant’s argument incorrectly treats the offenses alleged in the first two counts of the indictment as one offense.
C. A review of the entire record reveals that Appellant’s substantial rights were not affected by the trial court’s denial of his motion.
ARGUMENT ................................................................................................ 10
1. Reply to Appellant’s Issue ........................................................................ 10
Applicable Law .......................................................................................... 10
Facts ........................................................................................................... 14
Discussion .................................................................................................. 15
PRAYER ....................................................................................................... 23
RULE 9.4 CERTIFICATE OF COMPLIANCE .......................................... 24
CERTIFICATE OF SERVICE ..................................................................... 25
ii INDEX OF AUTHORITIES Cases
Blackshear v. State, 385 SW3d 589 (Tex. Crim. App. 2012) ................................................................................ 22
Coleman v. State, 788 SW2d 369 (Tex. Crim. App. 1990) .......................................................................... 11, 15
Couret v. State, 792 SW2d 106 (Tex. Crim. App. 1990) ................................................................................ 21
Devoe v. State, 354 SW3d 457 (Tex. Crim. App. 2011) .......................................................................... 17 n.4
Dickson v. State, 246 SW3d 733 (Tex. App.-Houston [14th Dist.] 2007, pet. ref’d)......................................... 18
Dominguez v. State, 62 SW3d 203 (Tex. App.-El Paso 2000, pet. ref’d) ............................................................ 17
Ex parte Hawkins, 6 SW3d 554 (Tex. Crim. App. 1999) ................................................................................ 16
Ex parte Padron, 16 SW3d 31 (Tex. App.-Houston [1st Dist.] 2000, pet. ref’d) ........................................... 16
Frias v. State, No.03-12-00463-CR, 2014 WL 3410592 (Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op., not designated for publication) ............................................................................................. 23 n.5
Guia v. State, 723 SW2d 763 (Tex. App.-Dallas 1986, pet. ref’d) .............................................................. 11
Johnson v. State, 68 SW3d 644 (Tex. Crim. App. 2002) ................................................................................ 17
King v. State, 189 SW3d 347 (Tex. App.-Fort Worth 2006, no pet.) .................................................... 13, 14
iii Lane v. State, 933 SW2d 504 (Tex. Crim. App. 1996) .......................................................................... 17, 18
Llamas v. State, 12 SW3d 469 (Tex. Crim. App. 2000) .................................................................... 12, 13, 20
Llamas v. State, 991 SW2d 64 (Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (Tex. Crim. App. 2000) .. 20
Lopez v. State, Nos. 03-06-00647-CR, 03-06-00659-CR, 2007 WL 2214615 (Tex. App.-Austin Aug. 1, 2007, pet. ref’d) (mem. op., not designated for publication) ................................................................................................... 14
Mock v. State, 848 SW2d 215 (Tex. App.-El Paso 1992, pet. ref’d) ................................................ 10, 11, 15
Nelson v. State, 864 SW2d 496 (Tex. Crim. App. 1993) .................................................................... 10, 11, 15
Peña v. State, 867 SW2d 97 (Tex. App.-Corpus Christi 1993, pet. ref’d) ................................................. 19
Ramirez v. State, No. 04-09-00323-CR, 2010 WL 480495 (Tex. App.-San Antonio Nov. 10, 2010, pet. ref’d) (mem. op., not designated for publication)........................................................................................ 23 n.5
Ransom v. State, 503 SW2d 810 (Tex. Crim. App. 1974) .......................................................................... 18, 19
Rodriguez v. State, 90 SW3d 340 (Tex. App.-El Paso 2001, pet. ref’d) ............................................................ 17
Scott v. State, 235 SW3d 255 (Tex. Crim. App. 2007) .................................................................... 12 n.3, 22
Segundo v. State, 270 SW3d 79 (Tex. Crim. App. 2008) .......................................................................... 17, 19
Silva v. State, 831 SW2d 819 (Tex. App.-Corpus Christi 1992, no pet.) ..................................................... 12
iv Thornton v. State, 986 SW2d 615 (Tex. Crim. App. 1999) ............................................................................... 12
Tovar v. State, 165 SW3d 785 (Tex. App.-San Antonio 2005, no pet.) ........................................................ 16
Trevino v. State, 228 SW3d 729 (Tex. App.-Corpus Christi 2006, pet. ref’d) ........................................... 13, 16
Werner v. State, 412 SW3d 542 (Tex. Crim. App. 2013) .................................................. 10, 11, 13, 21, 22, 23
Statutes and Rules
Tex. Code Crim. Proc. art. 21.24(a) ....................................................... 10 n.1
Tex. Code Crim. Proc. art. 37.10(b) ....................................................... 23 n.5
Tex. Penal Code § 3.01(1), (2) ..................................................................... 10
Tex. Penal Code § 3.02 ........................................................................... 10, 11
Tex. Penal Code § 3.02(a) ............................................................................ 10
Tex. Penal Code § 3.02(b) ...................................................................... 11 n.1
Tex. Penal Code § 3.03(a) ............................................................................ 23
Tex. Penal Code § 3.04(a) .......................................................... 11, 12, 13, 22
Tex. Penal Code § 3.04(c) ...................................................................... 11 n.2
Tex. Penal Code § 12.42(d) ................................................................ 1, 23 n.5
Tex. Penal Code § 29.03(a)(2) .........................................................................1
Tex. R. App. P. 38.1(i) .................................................................................. 15
Tex. R. App. P. 43.2(b) ........................................................................... 23 n.5
v Tex. R. App. P. 44.2(b) ................................................................................. 13
Treatises
43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 38.1 (3d ed. 2011) .............................................. 11
43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 38.44 (3d ed. 2011) ............................................ 11
6 Michael B. Charlton, Texas Practice: Texas Criminal Law § 3.4 (2d ed. 2001) ............................................................................................................. 15
vi No.13-14-00249-CR
JUAN VELA, Appellant, VS. THE STATE OF TEXAS, Appellee. **************************** IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
BRIEF FOR THE STATE TO THE HONORABLE COURT OF APPEALS:
Appellant was charged by indictment with three counts of aggravated
robbery. C.R. at 5-6. See Tex. Penal Code § 29.03(a)(2). A jury found him
guilty of each offense. C.R. at 74-76. After the jury found that Appellant was
a habitual felony offender, see Tex. Penal Code § 12.42(d), it assessed his
punishment at imprisonment for 45 years and a fine of $1000 for each
offense. C.R. at 85-89. Appellant’s only issue on appeal contends that the
trial court erred in denying his severance motion.
Statement of Facts
The first count of the indictment alleged that Appellant, on or about
October 5, 2013 in Nueces County, Texas, did then and there, while in the
course of committing theft of property and with intent to obtain or maintain
control of said property, intentionally or knowingly threaten or place Lamar
Luna in fear of imminent bodily injury or death, and Appellant did then and
there use or exhibit a deadly weapon, to wit: a knife, which in the manner of its use or intended use was capable of causing serious bodily injury or death.
C.R. at 5.
The second count of the indictment alleged that Appellant, on or about
October 5, 2013 in Nueces County, Texas, did then and there, while in the
course of committing theft of property and with intent to obtain or maintain
control of said property, intentionally, knowingly or recklessly cause bodily
injury to Amy Leija by cutting her with a knife, and Appellant did then and
there use or exhibit a deadly weapon, to wit: a knife, which in the manner of
its use or intended use was capable of causing serious bodily injury or death.
C.R. at 6.
The third count of the indictment alleged that Appellant, on or about
October 5, 2013 in Nueces County, Texas, did then and there, while in the
course of committing theft of property and with intent to obtain or maintain
control of said property, intentionally or knowingly threaten or place
Damiana Torres in fear of imminent bodily injury or death, and Appellant
did then and there use or exhibit a deadly weapon, to wit: a knife, which in
the manner of its use or intended use was capable of causing serious bodily
injury or death. C.R. at 6.
On October 5, 2013, Lamar Luna and Amy Leija were employed at
the Dollar General on Morgan Street in Corpus Christi, Texas. 3 R.R. at 6 &
2 61. Leija was an assistant manager and Luna was a cashier. 3 R.R. at 7-8.
When Luna came to work at 11:00 a.m., she went to the back office to count
the money in her register. After a while, Leija also went to the office to get a
key from Luna. 3 R.R. at 9. She saw Luna on the floor bound with duct tape.
Leija screamed and Appellant pushed her into the office before she could get
help. When he pushed her into the office, Leija’s finger was cut by the
kitchen knife Appellant was holding. 3 R.R. at 10 & 34. After Appellant
asked her for it, she gave him the money from the safe near the registers. He
took Luna’s register, the register from the safe, and the change fund.
Altogether, he stole about $750.
When Appellant and Leija returned to the office, he emptied a box
and put a register and the change in it. He then walked out of the store with
the box. 3 R.R. at 11-12. Before Appellant left, he told Leija to wait ten
minutes before she called the police; if not, he had a gun. 3 R.R. at 25. After
he left, Leija called the police and unbound Luna. 3 R.R. at 12. While
Appellant was dealing with Leija, he also told her “[t]o calm down, that he
just wanted the money from the safe.” 3 R.R. at 18.
SX-1, a surveillance video from the store, was introduced into
evidence without objection. 3 R.R. at 14. While viewing the video, Leija
explained that prior to the robbery, Appellant walked down the aisles that
3 contained knives. Also, Appellant is observed walking around the store
holding some detergent and a lighter. The lighter was later found by the hair
products. 3 R.R. at 19. Some detergent had been spilled near the entrance of
the back room. 3 R.R. at 20.
Besides the knife he was holding, Appellant was wearing a cap, a
fleece sweater, baggy shorts, sunglasses, and gloves. 3 R.R. at 10 & 20. She
described Appellant’s vehicle which was seen on the video as being black. 3
R.R. at 21. On October 8, 2013, Leija was able to identify Appellant from a
photo lineup. SX-2 & 9; 3 R.R. at 14-15 & 21. When she first saw
Appellant’s photo, she knew it was him. 3 R.R. at 43. Before she went to the
lineup, she had seen a photo of Appellant posted on Facebook after he
robbed a Wal-Mart on October 5, 2013. SX-10; 3 R.R. at 27 & 34-35. She
also saw a photo posted by a lady after she was involved in a vehicle
collision with Appellant that same day. 3 R.R. at 36-37. Appellant was
wearing different clothing during the Wal-Mart robbery. 3 R.R. at 28.
Luna testified that when she arrived to work on the morning of
October 5, 2013, she got her till and took it to the back office to count her
money. When she finished counting her money, she turned around toward
the door. Appellant then “popped up” in front of her with a knife to her face.
When Luna told Appellant that she just had $100, he tied her hands and
4 covered her mouth with duct tape and told her to sit on the floor. 3 R.R. at
63.
When Leija came to the office, Appellant also threatened her with the
knife. Leija then took him to the front of the store where the safe was. When
they returned to the office, Appellant emptied a box and put the tills inside
the box. Before he left through the front door, Appellant told them not to do
anything because he had a gun. 3 R.R. at 64-65 & 68. Despite the
circumstances, Luna described Appellant as having a “calm demeanor.” 3
R.R. at 66.
On October 8, 2013, Luna had no problem identifying Appellant in a
photo lineup. SX-52; 3 R.R. at 70. She had not seen any other photos of
Appellant prior to the lineup. 3 R.R. at 72. She submitted her two-weeks’
notice a few days after the robbery. 3 R.R. at 77.
Damiana Torres, an employee of the Wal-Mart on Greenwood, was
working in the MoneyCenter of the store around noon on October 5, 2013.
While she was helping a customer, she heard other customers say, “There’s
a fire, there’s a fire.” 3 R.R. at 136. She then noticed Appellant approaching
the MoneyCenter. Appellant looked suspicious because he was wearing
sunglasses and gloves. 3 R.R. at 136. When Torres finished with her
customer, Appellant was right next to her holding a knife. 3 R.R. at 136-137.
5 When Appellant asked her for the money, she explained that a manager had
to press a button to open her register. At that time, all of the managers were
preoccupied with the fire. Appellant kept telling her to hurry up and be calm.
Appellant finally pulled the money box out from under the register and
walked away with the box. 3 R.R. at 137-138. As he was walking away,
Appellant said, “Stay down, stay down. I have a gun in my backpack.” He
then exited through the grocery side doors. 3 R.R. at 138. Despite the
circumstances, Torres described Appellant as being “real calm.” 3 R.R. at
142.
SX-54, a surveillance video from the store, was introduced into
evidence. 3 R.R. at 139. Torres was unable to identify Appellant when she
was shown a photo lineup. 3 R.R. at 145. She was not asked if she could
identify Appellant in the courtroom.
Ramiro Sanchez was at the Wal-Mart with his girlfriend on October 5,
2013. While he was walking down an aisle, he saw Appellant wearing a
black beanie, a black shirt, black glasses, blue jeans, latex gloves, and a
backpack. Sanchez then talked to a store employee about what he had just
seen. 3 R.R. at 93.
When Sanchez and his girlfriend approached the registers, people
were yelling, “Fire, fire.” Sanchez then looked towards the MoneyCenter
6 and saw Appellant walking out of the MoneyCenter and exiting the store
with a big wooden box. The employee in the MoneyCenter was crying and
yelling, “I got robbed. I got robbed.” 3 R.R. at 94. When he exited the store,
Appellant was “walking calm, kind of just like trying to fit right in.” 3 R.R.
at 96. Sanchez believed Appellant had set the fire to facilitate the robbery. 3
R.R. at 95. A store employee told him Appellant left in a “blue . . . Ford
Explorer or something.” 3 R.R. at 97.
Though he was not shown a photo lineup, 3 R.R. at 97, Sanchez was
able to identify Appellant in the courtroom. 3 R.R. at 96. He had previously
seen a photo of Appellant on Facebook. 3 R.R. at 95.
Cynthia Tijerina was with Sanchez on the day of the robbery. When
she first saw Appellant, he was walking towards the back of the Wal-Mart
wearing a beanie, sunglasses, a black shirt, pants, gloves, and a backpack.
When they heard someone yell, “Fire,” she and Sanchez walked to the front
entrance. At that time, she observed Appellant exiting the MoneyCenter with
a wooden box. 3 R.R. at 108. Tijerina was able to identify Appellant in the
courtroom. 3 R.R. at 109. Though she had not been asked to identify
Appellant in a lineup, she had previously seen pictures of Appellant while
watching the news on TV. 3 R.R. at 110.
7 On October 5, 2013, Nick Narvaez, a Corpus Christi police officer,
was summoned to an accident in the 2300 block of Saratoga Boulevard
involving a black Ford Explorer and a black Ford pickup truck. Appellant
was the driver of the black Ford Explorer. 4 R.R. at 5-6 & 8. He was issued
citations for not having a driver license and failing to control his speed. The
collision occurred at 2:25 p.m. 4 R.R. at 7.
The State also introduced a surveillance video from the Dollar
General at the intersection of Staples and Park. The video depicts Appellant
in the store on October 5, 2013 at 9:19 a.m. SX-55; 3 R.R. at 147-149.
Katherine Pina, a crime scene investigator with the Corpus Christi
Police Department, took photos of the scene at the Dollar General on
Morgan Street. 3 R.R. at 48-49. Duct tape was sold at the store. 3 R.R. at 51-
52. Pina also went to the Wal-Mart at around 1:00 p.m. Firefighters were
trying to clear out the smoke from the fire. 3 R.R. at 55. Appellant’s knife
was found in the MoneyCenter area of the store on the floor mat next to the
register. 3 R.R. at 56. Because Appellant wore gloves, she was unable to
obtain any latent fingerprints. 3 R.R. at 57. The fire was started in the area of
the store where toilet paper and paper towels may be found. Some toilet
paper had been set on fire. There was a “very strong odor of detergent” and a
light blue liquid on the floor. 3 R.R. at 58-59.
8 Officer Amado Garcia responded to the aggravated robbery call at the
Dollar General. When Garcia arrived at the store, a male witness told him
that he had seen Appellant get into a black 2000 model Ford Explorer. 3
R.R. at 87.
Officer Ralph Torres was dispatched to the Wal-Mart on Greenwood.
3 R.R. at 120. A store employee, Joe Ibarra, told Torres that “he possibly
saw a second suspect.” 3 R.R. at 123.
Officer Luis Flores spoke with Jacob Reyna, a cart attendant at Wal-
Mart, who told him that he saw Appellant walking towards a blue 4-door
Ford Explorer. 3 R.R. at 129. Flores also saw a kitchen knife on the floor in
the financial center. 3 R.R. at 130-131. It was determined that Appellant had
taken the knife from the kitchen area section of the store. Flores found the
empty package that had contained the knife. 3 R.R. at 132.
Additional facts necessary for a resolution of Appellant’s issue will be
recited in the reply to said issue.
Summary of the Argument
A. The trial court did not err in denying Appellant’s motion because Appellant was not entitled to a severance of just one of the charged offenses.
B. Appellant’s argument incorrectly treats the offenses alleged in the first two counts of the indictment as one offense.
9 C. A review of the entire record reveals that Appellant’s substantial rights were not affected by the trial court’s denial of his motion.
Argument
In his only issue, Appellant contends that the trial court erred in
denying his severance motion. Appellant’s Brief at 2.
Applicable Law
“A defendant may be prosecuted in a single criminal action for all
offenses arising out of the same criminal episode.” Tex. Penal Code §
3.02(a). Offenses arise out of the same criminal episode if “(1) the offenses
are committed pursuant to the same transaction (a single crime spree) or
more than one transaction if they are connected by a ‘common scheme or
plan’; or (2) ‘the offenses are the repeated commission of the same or similar
offenses.’” Werner v. State, 412 SW3d 542, 546 (Tex. Crim. App. 2013)
(quoting Tex. Penal Code § 3.01(1), (2)). Prosecuting connected or related
charges in a single criminal action promotes judicial economy. Id.
The decision to consolidate or join cases pursuant to § 3.02 belongs to
the State. See Nelson v. State, 864 SW2d 496, 498 (Tex. Crim. App. 1993);
Mock v. State, 848 SW2d 215, 219 (Tex. App.-El Paso 1992, pet. ref’d).1 “A
1 “Joinder” occurs when multiple offenses are alleged in the same charging instrument. Tex. Code Crim. Proc. art. 21.24(a). “Consolidation” occurs
10 defendant does not have a right to consolidate offenses committed in the
same criminal episode.” Nelson, 864 SW2d at 498 (emphasis in original);
see also Mock, 848 SW2d at 218. Additionally, “the decision to consolidate
prosecutions is not within the discretion of the trial court.” Guia v. State, 723
SW2d 763, 768 (Tex. App.-Dallas 1986, pet. ref’d).
“Whenever two or more offenses have been consolidated or joined for
trial under Section 3.02, the defendant shall have a right to a severance of
the offenses.” Tex. Penal Code § 3.04(a). This section “grants defendants an
absolute right to sever most charges that have been consolidated under
Section 3.02.” Werner, 412 SW3d at 546.2
“‘Severance’ occurs when joined or consolidated charges are ‘split
apart’ so that each charge can be tried separately.” 43 George E. Dix & John
M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 38.1 at
p. 389 (3d ed. 2011); see also id. at § 38.44 (“[T]he substance of the demand
must make it clear that the defendant is objecting to joint trial of joined or
consolidated charges. . . . A demand for severance states merely that the
defendant wishes to be tried for only one offense in a single trial . . . .”);
Coleman v. State, 788 SW2d 369, 373 (Tex. Crim. App. 1990) (proper
when offenses alleged in separate charging instruments are tried at the same time. Tex. Penal Code § 3.02(b). 2 § 3.04(c) provides that the absolute right to a severance is not applicable to certain offenses. Aggravated robbery is not one of those offenses.
11 severance motion must apprise trial court that it is “a motion to sever
properly joined . . . offenses for separate trials”); Silva v. State, 831 SW2d
819, 823 (Tex. App.-Corpus Christi 1992, no pet.) (“The appellant may
timely request a severance so that he is tried for each count in a separate
trial.”).3
The right to a mandatory severance under § 3.04(a) addresses two
legitimate concerns:
(1) that the jury may convict a “bad man” who deserves to be punished-not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged.
Llamas v. State, 12 SW3d 469, 471-472 (Tex. Crim. App. 2000). Thus, “[t]he
primary reason for a defendant to sever offenses is to limit the presentation of
evidence of the defendant’s wrongdoing to one offense, rather than allowing
presentation of evidence of multiple offenses.” Thornton v. State, 986 SW2d
615, 617 (Tex. Crim. App. 1999). However, the granting of a severance does
not preclude the admission of extraneous offenses pursuant to Rule 404(b) of
3 When offenses that are subject to mandatory severance are joined or consolidated with offenses that are not subject to mandatory severance, a defendant may seek severance of those offenses that are subject to mandatory severance. See Scott v. State, 235 SW3d 255, 258 (Tex. Crim. App. 2007).
12 the Texas Rules of Evidence. Werner, 412 SW3d at 549; King v. State, 189
SW3d 347, 354 (Tex. App.-Fort Worth 2006, no pet.).
If a trial judge erroneously denies a severance motion, the error must be
reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure.
Llamas, 12 SW3d at 470. “In order to properly conduct a harm analysis under
Rule 44.2(b), an appellate court need only determine whether or not the error
affected a substantial right of the defendant. To make this determination,
appellate courts must decide whether the error had a substantial or injurious
effect on the jury verdict.” Id. at 471 n.2. Harm must be assessed “after
reviewing the entirety of the record, including the evidence, jury charge,
closing arguments, voir dire, and any other relevant information.” Werner, 412
SW3d at 547.
Considering the two concerns addressed by § 3.04(a), courts have
generally found the denial of a severance harmless if the evidence of one
offense would have been admissible in the separate prosecution of the other
offense. E.g., Werner, 412 SW3d at 549 (focusing “on whether evidence was
admissible in the separate cases”); Trevino v. State, 228 SW3d 729, 733 (Tex.
App.-Corpus Christi 2006, pet. ref’d) (no reversible error in failing to sever
murder and aggravated assault offenses because the jury would have heard the
same evidence as same transaction contextual evidence in separate trials);
13 King, 189 SW3d at 354 (listing cases); Lopez v. State, Nos. 03-06-00647-CR,
03-06-00659-CR, 2007 WL 2214615, at *3 (Tex. App.-Austin Aug. 1, 2007,
pet. ref’d) (mem. op., not designated for publication) (severance error did not
affect appellant’s substantial rights because, had the offenses been tried
separately, it was probable that evidence from each offense would have been
admissible in both trials to refute defensive theories).
Facts
During docket call on March 27, 2014, Appellant urged his motion to
sever offenses that had been filed the same day. C.R. at 59; Supp. 2 R.R. at 3-
4. Appellant stated, “Your Honor, we are asking on this cause number to sever
Count 3 from Counts 1 and 2. Counts 1 and 2 both involve a robbery at the
same location, whereas Count 3 involves an alleged robbery at another location
on the same date. And we would like to try the 1 and 2 together, and then try 3
separately.” The trial court denied the motion. C.R. at 107; Supp. 2 R.R. at 4.
Before voir dire began on March 31, 2014, Appellant stated, “Your
Honor, we are ready on Counts 1 and 2, but we’re going to announce not ready
on Count 3 based upon our motion for severance. I understand the Court is
probably going to make us go forward on all 3 counts.” 2 R.R. at 4. Appellant
explained that he did not announce ready on Count 3 because he did not want
14 to forfeit any appellate issues regarding his severance request. 2 R.R. at 5. The
trial court again denied his request. C.R. at 107; 2 R.R. at 6.
Discussion
As in Coleman, the threshold issue in this case is the nature of
Appellant’s motion. 788 SW2d at 371. Appellant requested that the offense
alleged in Count 3 be severed from the offenses alleged in Counts 1 and 2.
Supp. 2 R.R. at 3-4. He now contends the trial court erred in denying his
motion because it resulted “in a joint trial for two separate robberies.” He seeks
“two new trials – one for Counts One and Two related to Dollar General and
the other for Count Three related to Wal-Mart.” Appellant’s Brief at 6.
Appellant does not provide the Court with any authority in support of his
contention that he was entitled to a severance of one of the counts from the
other two counts. Likewise, he also fails to provide the Court with any
authority in support of his request for two new trials. See Tex. R. App. P.
38.1(i). Appellant is essentially attempting to usurp the State’s right to join or
consolidate offenses. See Nelson, 864 SW2d at 498; Mock, 848 SW2d at 219.
“Severance of the joined offenses is the only portion of the consolidation
process over which the defendant has any control.” 6 Michael B. Charlton,
Texas Practice: Texas Criminal Law § 3.4 at p.36 (2d ed. 2001).
15 Additionally, Appellant attempts to show that he was harmed by the
denial of his motion by incorrectly treating the offenses alleged in the first two
counts of the indictment as one offense. Appellant’s Brief at 6, 7, 9, 15, 18, 20,
21, & 22. The allowable unit of prosecution for robbery is each victim. Ex
parte Hawkins, 6 SW3d 554, 560 (Tex. Crim. App. 1999) (“Prosecuting the
applicant twice for robbery did not violate the Double Jeopardy Clause of the
Fifth Amendment because the allowable unit of prosecution for robbery is each
victim, and he assaulted two victims in the course of committing theft.”); Ex
parte Padron, 16 SW3d 31, 35 (Tex. App.-Houston [1st Dist.] 2000, pet. ref’d).
Thus, the State properly charged Appellant with two offenses for his conduct at
the Dollar General.
If Appellant had requested a proper severance of all the charges,
evidence of both of the offenses alleged in Counts 1 and 2 would have been
admissible as same transaction contextual evidence in the separate trial of each
offense. “Same transaction contextual evidence results when an extraneous
matter is so intertwined with the State’s proof of the charged crime that
avoiding reference to it would make the State’s case incomplete or difficult to
understand.” Trevino, 228 SW3d 733; see also Tovar v. State, 165 SW3d 785,
795 (Tex. App.-San Antonio 2005, no pet.) (no reversible error in failing to
sever charges of producing sexual performance by a child and possession of
16 child pornography); Rodriguez v. State, 90 SW3d 340, 358 (Tex. App.-El Paso
2001, pet. ref’d) (no reversible error in failing to sever two counts of engaging
in organized criminal activity); Dominguez v. State, 62 SW3d 203, 208 (Tex.
App.-El Paso 2000, pet. ref’d) (no reversible error in failing to sever
possession of controlled substance and failure to stop and render aid charges).4
Moreover, as Appellant notes in his brief, his defense consisted of
challenging the State’s witnesses regarding their ability to identify him as the
perpetrator. Appellant’s Brief at 21. “One of the main rationales for admitting
extraneous-offense evidence is to prove the identity of the offender.” Segundo
v. State, 270 SW3d 79, 88 (Tex. Crim. App. 2008). “To be admissible to show
identity, an extraneous offense must be so similar to the offense charged that
the offenses are marked as the accused’s handiwork.” Lane v. State, 933 SW2d
504, 519 (Tex. Crim. App. 1996). “[S]ufficient similarity may be shown by
proximity in time and place or by a common mode of committing the
offenses.” Id. (emphasis in original). “The exactness [in similarity] that might
be required of an offense committed at a more remote period of time might not
necessarily be required for an offense committed within a very short period of
time.” Johnson v. State, 68 SW3d 644, 651 (Tex. Crim. App. 2002) (“The
4 A limiting instruction is not required when evidence is admitted as same transaction contextual evidence. Devoe v. State, 354 SW3d 457, 471 (Tex. Crim. App. 2011).
17 extraneous offenses were highly probative because they placed the primary
offense in context of the scheme carried out that night and because they tended
to prove appellant’s identity as the perpetrator.”). The fact that a defendant
might have changed his clothing or appearance is not controlling. Ransom v.
State, 503 SW2d 810, 813-814 (Tex. Crim. App. 1974). “Some dissimilarities
between the charged crime and the extraneous offense do not automatically
make the extraneous offense inadmissible.” Dickson v. State, 246 SW3d 733,
743 (Tex. App.-Houston [14th Dist.] 2007, pet. ref’d) (evidence of extraneous
aggravated robbery admitted to prove identity in aggravated robbery trial).
In Ransom, the appellant was convicted of robbery. Id. at 811. On
appeal, he complained about the admission of an extraneous offense, another
robbery, during the guilt-innocence phase of the trial. Id. The Court held that
the extraneous offense was admissible to prove identity because “both offenses
were robberies committed at gunpoint in Dallas three days apart, while
appellant, identified as the perpetrator of both, was aided by a confederate.” Id.
at 813; see also Lane, 933 SW2d at 519 (discussing Ransom).
In the instant case, the similarity of all three offenses is shown by
proximity in time and place and by a common mode of committing the
offenses. All three offenses occurred within about an hour of each other. All
three offenses occurred in Corpus Christi. In all three offenses, Appellant
18 accosted a female employee of a retail store with a kitchen knife. In all three
offenses, Appellant told the victims he had a gun that he did not display. In all
three offenses, Appellant left the store with a till or money box. In all three
offenses, Appellant wore sunglasses and gloves. In all three offenses,
Appellant was described as being calm. Thus, there are more similarities
between the offenses in this case than those in Ransom.
Additionally, even Appellant acknowledges that “[t]he detergent/fabric
softener and lighter/fire link between the two scenes certainly indicate a
relationship between the two scenes . . . .” Appellant’s Brief at 17. “This is ‘the
mark of Zorro’ mode of proving identity; it is a remarkably unusual fact, in
which a single detail suffices to establish identity.” Segundo, 270 SW3d at 88
(appellant’s DNA found in both murder victims constituted his “calling card”);
accord Peña v. State, 867 SW2d 97, 99 (Tex. App.-Corpus Christi 1993, pet.
ref’d) (holding that repeated use of same vehicle in different burglaries
constituted a “signature” characteristic). The use of detergent as a criminal
instrument certainly seems to qualify as a remarkably unusual fact that
constitutes a “signature” characteristic. As Appellant notes in his brief, “[t]he
sheer existence of two similar crimes on the same day lessened the strength of
the defense.” Appellant’s Brief at 21.
19 Appellant’s contention that this case “closely resembles” Llamas does
not withstand scrutiny. Appellant’s Brief at 16. In Llamas, the appellant was
detained and arrested after he was observed driving a pickup truck with
obliterated identification numbers. Officers then inventoried the truck and
discovered an envelope containing cocaine. Llamas v. State, 991 SW2d 64, 66
(Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (2000). The appellant was
subsequently indicted for tampering with identification numbers and
possession of cocaine by two separate indictments. On appeal, he contended
that the trial court erred in consolidating the two charges for trial over his
objection. Id. The Amarillo Court of Appeals and the Court of Criminal
Appeals agreed. In upholding the judgment of the court of appeals, the Court
of Criminal Appeals said, “Clearly, evidence as to the cocaine charge was
admitted in this trial that would otherwise not be relevant to the possession of
altered identification numbers and vice versa.” 12 SW3d at 472.
The Court of Criminal Appeals long ago explained why the cocaine
possession charge should not have been prosecuted with the altered
identification numbers charge:
A . . . rule that has often been stated by this Court is that the State is entitled to show the circumstances surrounding an arrest. However, this rule is restricted by the same test as any extraneous matter, that is, the evidence must be relevant to a material issue in the case and the
20 probative value must outweigh the prejudicial value. Therefore, to simply state that something is admissible merely because it is a circumstance of the arrest is too broad a statement.
Couret v. State, 792 SW2d 106, 107 (Tex. Crim. App. 1990) (emphasis in
original and citations omitted). In Couret, a hypodermic needle was found in
the appellant’s possession at the time he was arrested for a burglary. Id. The
Court held that the trial court erred in admitting evidence of the hypodermic
needle at the appellant’s burglary trial. Id. at 108.
Appellant’s other arguments are equally unconvincing.
Though Appellant notes that one of the voir dire panel members
appeared to have trouble with the fact that Appellant was charged with
multiple offenses, Appellant’s Brief at 17-18; 2 R.R. at 124-125, that panel
member did not serve on the jury. 2 R.R. at 169 & 178-179. She was also the
only one of the eighty panel members who expressed any such reservation.
And even if the offenses had been severed, the jury would have been permitted
to consider evidence of the other two offenses when deliberating on one
offense. See Werner, 412 SW3d at 551.
Though Appellant also complains that one small portion of the jury
charge may “have impressed upon the jury that the evidence of each crime
overlapped where the actual evidence itself may not have,” Appellant’s Brief at
18, Appellant did not object to the charge. Furthermore, when viewed in its
21 entirety, the charge made it clear that Appellant was charged with three
separate offenses that required three separate verdicts. C.R. at 65-76. And as
noted above, the evidence of the three crimes did overlap.
Appellant also complains about the prosecutor’s argument “linking the
two crimes in order to emphasize proof beyond a reasonable doubt.”
Appellant’s Brief at 20. As noted above, there were several links between the
three crimes. See Werner, 412 SW3d at 551.
Though Appellant also contends that his strategy could have changed if
a severance had been granted, Appellant’s Brief at 22, he does not state what
other viable defense would have been available to him had a severance been
granted. See Werner, 412 SW3d at 548 n.35; Scott, 235 SW3d at 261.
Finally, Appellant notes that his trial counsel announced that he was not
ready on Count 3. Appellant’s Brief at 22. But his trial counsel explained that
he was announcing not ready to avoid forfeiting any appellate issues regarding
his severance motion. 2 R.R. at 4-5. A defendant is not entitled to a severance
if he is not ready for trial. See Tex. Penal Code § 3.04(a). Because Appellant
never requested a continuance, he never filed a sworn motion for continuance.
Consequently, the issue is moot. See Blackshear v. State, 385 SW3d 589, 591
(Tex. Crim. App. 2012).
22 ` Appellant also fails to note that his sentences will be served
concurrently because of the joinder of the offenses. See Tex. Penal Code §
3.03(a); Werner, 412 SW3d at 551-552.
In conclusion, Appellant was not entitled to a severance of just one of
the offenses alleged in the indictment. Moreover, a review of the entire record
reveals that Appellant’s substantial rights were not affected by the denial of his
motion.
Accordingly, Appellant’s issue should be overruled.
Prayer
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.5
5 As noted above, after finding that Appellant was a habitual felony offender, the jury assessed his punishment at imprisonment for 45 years and a fine of $1,000 for each offense. C.R. at 85-89. The judgment reflects the imposition of the fines. C. R. at 95. Section 12.42(d) of the Penal Code does not authorize the imposition of a fine. The Court may modify the trial court’s judgment by deleting the fine for each conviction. Tex. Code Crim. Proc. art. 37.10(b); Tex. R. App. P. 43.2(b); Frias v. State, No. 03-12-00463-CR, 2014 WL 3410592, at *10 (Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op., not designated for publication) (deleting fine assessed against habitual felony offender); Ramirez v. State, No. 04-09-00323-CR, 2010 WL 4840495, at *2 (Tex. App.-San Antonio Nov. 24, 2010, pet. ref’d) (mem. op., not designated for publication) (same).
23 Respectfully submitted,
/s/ Adolfo Aguilo, Jr. Adolfo Aguilo, Jr. State Bar No. 00936750 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) adolfo.aguilo@co.nueces.tx.us
Rule 9.4 Certificate of Compliance
In compliance with Texas Rule of Appellate Procedure 9.4(i), I certify
that the number of words in this brief, including those matters listed in Rule
9.4(i)(1), is 6,363.
/s/ Adolfo Aguilo, Jr. Adolfo Aguilo, Jr.
24 Certificate of Service
This is to certify that this brief was emailed to Appellant’s counsel,
Danice L. Obregon (danice@obregonlaw.com), on February 2, 2015.