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OF TEXAS





NOS. PD-1976-04, PD-1971-04




VERONICA DAWN QUALLEY and SONNY DALE MOORE, Appellants

 
v.


THE STATE OF TEXAS





ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW 
FROM THE EIGHTH COURT OF APPEALS
PECOS COUNTY


 Hervey, J., filed a concurring opinion in which Keasler, J., joined.


CONCURRING OPINION

	I agree with the Court that any error in denying appellant Moore a severance under the
"previous admissible conviction" portion of Article 36.09, Tex. Code Crim. Proc., was harmless
because appellant Qualley's previous conviction was not admitted.  See Qualley/Moore v. State, 
 S.W.3d   slip op. at 36 (Tex.Cr.App. Nos. PD-1971-04 and PD-1976-04, delivered this date). 
Moore also claimed that the trial court's failure to grant him a severance prejudiced him by
preventing him from using Qualley's prior conviction to show Qualley's identity as the one who
killed the victim and to explain why Moore would falsely confess to the police.  The Court decides
that Moore procedurally defaulted the latter claim and that the former claim is without merit because
Qualley's prior conviction was not admissible to show Qualley's identity.  See Qualley/Moore, slip
op. at 8-9, 13-14, 37-38.  I would decide that Moore procedurally defaulted both of these claims by
not asserting them until the middle of trial.  See id.  I otherwise join the Court's opinion.

 								Hervey, J.

Filed: May 24, 2006
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