      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00267-CR



                                 Kyle James Moesch, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 64756, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is one of three appeals arising from a capital murder trial against three co-

defendants. The jury convicted the appellant in this cause, Kyle James Moesch, of the offense of

capital murder for remuneration. See Tex. Penal Code Ann. § 19.03(a)(3) (West Supp. 2011). The

State did not seek the death penalty, and punishment was automatically assessed at life imprisonment

without the possibility of parole. In two issues on appeal, Moesch asserts that the district court

abused its discretion in denying his motion to sever his trial from the trial of his co-defendants,

Kathryn Nellie Briggs and John Anthony Valdez, Jr.,1 and that the district court reversibly erred in

failing to sua sponte instruct the jury that the evidence pertaining to each defendant should be

considered separately and independently. We will affirm the judgment of conviction.




       1
         Briggs and Valdez filed similar motions to sever, which were also denied. Both Briggs
and Valdez were also convicted of capital murder. Briggs’s appeal is before us as cause number 03-
11-00275-CR, while Valdez’s appeal is before us as cause number 03-11-00274-CR.
                                         BACKGROUND

               The jury heard evidence that on October 14, 2008, the body of Fort Hood

Staff Sergeant Ryan Sullivan was discovered in the apartment where he had lived. Dr. Reid Quinton,

a medical examiner who had performed an autopsy on the body, testified that Sullivan had

received approximately 34 stab wounds to his abdomen, head, and other areas of his body, including

defensive stab wounds to his arms and hands and likely fatal stab wounds that punctured his neck,

heart, and lungs. Quinton also testified that the level of decomposition in the body was consistent

with Sullivan having been killed in the early morning hours of October 11. The State’s theory at trial

was that Valdez had killed Sullivan, that Moesch had assisted Valdez in the crime, and that Briggs,

who had been in a past romantic relationship with Sullivan, had orchestrated the killing in order to

recover proceeds from Sullivan’s life insurance policy, of which she was a named beneficiary.

               The complex factual background of this case is fully discussed in this Court’s

opinion affirming the conviction of Moesch’s co-defendant Briggs and will not be repeated here.

See Briggs v. State, No. 03-11-00275-CR (Tex. App.—Austin Aug. 24, 2012, no pet. h.) (mem. op.,

not designated for publication). We discuss further background details only as necessary to address

the issues raised by Moesch in this appeal.


                                              ANALYSIS

Motion to sever

               In his first issue, Moesch asserts that the district court abused its discretion in

denying his motion to sever his trial from the trials of his co-defendants. Severance is governed by

article 36.09 of the code of criminal procedure, which provides that two or more defendants may,



                                                  2
at the discretion of the court, be tried jointly for any offense growing out of the same transaction

unless, upon timely motion to sever, it is shown either that there is a previous admissible conviction

against one defendant or that a joint trial would be prejudicial to any defendant. Tex. Code Crim.

Proc. Ann. art. 36.09 (West 2007). Moesch argues only the second ground, contending that he was

prejudiced by a joint trial with Briggs and Valdez.

                In drafting article 36.09, “the Legislature intended for defendants accused of the same

offense to be tried together most of the time.” Qualley v. State, 206 S.W.3d 624, 631 (Tex. Crim.

App. 2006). “‘Prejudice,’ then, cannot mean the types of circumstances or disagreements between

parties that would normally be expected to [arise] during any trial containing multiple defendants.’”

Id. Rather, “[t]o establish prejudice, the defendant must show a serious risk that a specific trial right

would be compromised by a joint trial, or that a joint trial would prevent the jury from making a

reliable judgment about guilt or innocence, and that the problem could not be adequately addressed

by lesser curative measures, such as a limiting instruction.” Id. at 636. It is not enough for the

defenses of co-defendants to be mutually exclusive or antagonistic. See id.

                Moesch claims that he was entitled to a severance because of the “prejudicial hearsay

statements” made by Valdez that, in Moesch’s view, were admissible against Valdez but not against

him. Moesch also complains of the “inherent prejudice of being forced to trial with co-defendants

of overwhelming culpability.”

                The district court would not have abused its discretion in concluding that

Moesch’s concerns are “the types of circumstances or disagreements between parties that would

normally be expected to [arise] during any trial containing multiple defendants” and thus do not

demonstrate prejudice. See id. at 631. Regarding Moesch’s assertion that he was “less culpable”

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of the offense than Briggs and Valdez, even assuming that this is true, it is well settled that

mere proof of differing degrees of culpability will not support a severance. See, e.g., King v. State,

17 S.W.3d 7, 17-18 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Davila v. State, 4 S.W.3d

844, 847 (Tex. App.—Eastland 1999, pet. ref’d); Silva v. State, 933 S.W.2d 715, 719

(Tex. App.—San Antonio 1996, no pet.); Gibbons v. State, 794 S.W.2d 887, 891 (Tex. App.—Tyler

1990, no pet.). The district court thus would not have abused its discretion in finding that Moesch

was not entitled to a severance on that ground. Regarding Moesch’s claim that he was prejudiced

by the admission of Valdez’s hearsay statements to Jacobs, the record supports a finding by the

district court that Moesch and Valdez conspired together to commit the murder. Accordingly, the

district court would not have abused its discretion in finding that Valdez’s statements to Jacobs were

admissible not only against Valdez, but also against Moesch under the co-conspirator exception to

the hearsay rule. See Tex. R. Evid. 801(e)(2)(E); see also Meador v. State, 812 S.W.2d 330, 332

(Tex. Crim. App. 1991) (“[T]he co-conspirator exception to the hearsay rule is [] not limited to

prosecutions for conspiracy; it is a rule of evidence applicable to any offense.”). Accordingly,

Valdez’s statements to Jacobs would have been admissible against Moesch even if he had been tried

separately, and the district court would not have abused its discretion in finding a lack of prejudice

on that ground. Furthermore, to the extent that Moesch is claiming prejudice from the admission of

any statements made by Briggs, we observe that the jury was instructed that any such statements

were admitted “solely for the purpose of serving as evidence in the case against [Briggs] . . . and such

statements cannot be considered as any evidence against [Moesch], or in any way to connect

the defendant with the alleged offense.” The limiting instruction further provided that the jury “must

not consider such alleged statements of [Briggs], if any, in any way as any evidence whatsoever

                                                   4
against [Moesch], and you will restrict your consideration of such statements, if any, to the

determination of the guilt or innocence of [Briggs], if you do consider it, and not to [Moesch].” Such

an instruction, the district court could have reasonably found, would alleviate any risk of prejudice

to Moesch. See id.; see also Zafiro v. United States, 506 U.S. 534, 539-41 (1993) (explaining that

“even if there were some risk of prejudice” in a joint trial, “less drastic measures, such as limiting

instructions, often will suffice to cure any risk of prejudice”).

                 On this record, Moesch has failed to show “a serious risk that a specific trial

right would be compromised by a joint trial, or that a joint trial would prevent the jury from making

a reliable judgment about guilt or innocence.” See Qualley, 206 S.W.3d at 636. Accordingly, we

cannot conclude that the district court abused its discretion in denying Moesch’s motion to sever.

We overrule Moesch’s first issue.


Alleged charge error

                 In his second issue, Moesch asserts that the district court reversibly erred in failing

to sua sponte instruct the jury “to consider the evidence of each individual separately, without

reference to the guilt or innocence of Moesch’s co-defendants.” According to Moesch, “because the

trial court failed to ensure that Moesch’s guilt be determined individually,” by so instructing the jury,

“the judgment must be reversed and remanded for a new trial.”

                 Assuming without deciding that such an omission from the charge was error,2 Moesch

did not request such an instruction or otherwise object to its omission. Accordingly, he is entitled




        2
            In his brief, Moesch cites to no authority holding that it is. See Tex. R. App. P. 38.1(i).

                                                    5
to reversal only if the record shows that he was egregiously harmed by the omission. See Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

               Charge errors that result in egregious harm are those that affect “the very basis of

the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). What is ultimately required is a showing that

the error deprived the defendant of a “fair and impartial trial.” Almanza, 686 S.W.2d at 172. When

determining if such a deprivation occurred, we are to consider: (1) the charge itself; (2) the state of

the evidence including contested issues and the weight of the probative evidence; (3) arguments

of counsel; and, (4) any other relevant information revealed by the record of the trial as a whole. See

Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993)).

               Throughout the trial in this case, the jury was informed and reminded on multiple

occasions that an individual verdict was required for each defendant. At the beginning of voir dire,

the district court instructed the prospective jurors that during deliberations, the jury would have to

“determine guilt or innocence and whether the State has met its burden of proving the defendants,

any of them or each of them or none of them, guilty beyond a reasonable doubt, if they have in fact

proven their case beyond a reasonable doubt.” The State, in its voir dire, was even more explicit

about this requirement:


       You have three defendants in the case. And Judge Trudo has touched on this but
       I want to do it again. You will be, if you’re selected to be on the jury, you will be
       given three separate verdict forms, three separate sets of instructions, one for each
       defendant and you will conclude and deliberate individually on each defendant. You
       will deliberate at the same time as a group, but you must believe beyond a reasonable
       doubt that defendant A is guilty or not, defendant B is guilty or not, defendant C is
       guilty or not.



                                                  6
       They are each individually adjudged by you as a juror. Does everyone understand
       that? So obviously you could find two guilty and one not guilty, you can find all
       three guilty, you can find all three not guilty. But you do it one at a time. And you
       must find beyond a reasonable doubt that that defendant is guilty and on his or her
       verdict form before you move on to the next one. Does that make sense?


The record reflects that at least one prospective juror responded, “Yes.” The record reflects that

none of the prospective jurors indicated that they did not understand. Counsel for Moesch later

emphasized the same point:


       And what I urge you to do, what I respectfully ask you to do on behalf of
       Kyle Moesch is judge each of these individuals as an individual. Look at the
       evidence or testimony that you hear in this courtroom and try to determine if it
       relates, how it relates to each individual defendant that’s accused in this case.

       This does not have to be a group verdict by any means, just as [the prosecutor]
       told you. You have the right to return an individual verdict as to each of these young
       people. And at the appropriate time in the case each lawyer will be addressing that
       further. But keep in mind that even though there’s three defendants, you’re judging
       one defendant.


Similar comments were made during voir dire by the attorneys for Briggs and Valdez.

               As the trial progressed, evidence was presented regarding the involvement of each

individual defendant in the crime, and the attorney for each defendant, during cross-examination,

emphasized how certain evidence did not apply to that defendant. We also observe that there was

evidence presented during trial relating specifically to Moesch’s individual involvement in the

murder. In written statements to the police, Moesch admitted that he was with Sullivan and in his

apartment on the night he was murdered and also admitted, in one of the statements, that “when

initially approached” about the hit on Sullivan, he “offered to help in any way needed for a cut.”

Also, Jacobs testified that Moesch told him the morning after the murder, “It’s done, Sully’s dead,”

                                                 7
and showed Jacobs what appeared to be blood on Moesch’s pants after Moesch had just finished

“washing his hands.” Moreover, phone records were admitted into evidence that tended to implicate

Moesch in the murder, and Moesch’s DNA was found at the crime scene. Contrary to Moesch’s

assertion, this was not a case in which the evidence of his involvement in the crime was weak.

               Furthermore, a separate charge was submitted for each defendant, each separate

charge contained a verdict form relating to that individual defendant alone, and each separate charge

was read to the jury separately prior to closing arguments. We also observe that during closing

arguments, each attorney for each defendant, as well as the prosecutors, emphasized the evidence

relating to each individual defendant. There was no suggestion by anyone that anything other than

an individual verdict for each defendant would be appropriate.

               On this record, we cannot conclude that Moesch was denied a fair and impartial trial

by the alleged charge error. We overrule Moesch’s second issue.


                                         CONCLUSION

               We affirm the judgment of the district court.



                                              ____________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 24, 2012

Do Not Publish



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