AFFIRM; and Opinion Filed February 17, 2017.




                                                       S
                                           Court of Appeals
                                                           In The


                                    Fifth District of Texas at Dallas
                                                     No. 05-15-00943-CR

                                           NDUBUISI NKALARI, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                      On Appeal from the County Court at Law
                                              Rockwall County, Texas
                                         Trial Court Cause No. CR13-1057

                                          MEMORANDUM OPINION
                                     Before Justices Fillmore, Brown, and Richter 1
                                              Opinion by Justice Brown
          Following a jury trial, appellant Ndubuisi Nkalari appeals his conviction for

misdemeanor assault. In two issues, appellant contends the trial court erred in not severing the

assault case from another case arising out of the same criminal transaction and in limiting his

cross-examination of the arresting officer. For reasons that follow, we affirm the trial court’s

judgment.

                                                       BACKGROUND

          In August 2013, appellant was charged with misdemeanor assault causing bodily injury

to a family member, his wife Christy.                      The information alleged appellant intentionally,

knowingly, or recklessly caused bodily injury to Christy by using Christy’s arms to apply


   1
       The Hon. Martin Richter, Justice, Assigned.
pressure to her throat or neck. Appellant was charged separately with the unlawful restraint of

his wife. Both offenses were alleged to have occurred on or about June 22, 2013. In September

2014, the State filed a notice of its intent to join the assault and unlawful restraint cases for trial

because they arose out of the same criminal episode. The trial court granted the State’s motion

for joinder on October 2, 2014.

       On the day of trial in July 2015, just before voir dire, defense counsel indicated he had

filed a “formal motion” that morning to sever the two cases. Counsel made reference to having

made an oral request for severance at a pretrial hearing a few days earlier. (We do not have a

record of that hearing.) Counsel argued that appellant was entitled to a mandatory severance

pursuant to section 3.04 of the penal code. The State responded that the motion to sever was

untimely. The trial court denied the motion and proceeded with the trial. Appellant pleaded not

guilty to both charges.

       Christy testified that at the time of the incident in question, she and appellant were

sleeping in separate bedrooms due to trouble in the marriage. They were divorced by the time of

trial. As she was about to go to bed on the night of June 22, 2013, she heard appellant watching

TV in the master bedroom. After asking appellant to turn down the TV, Christy went into

another bedroom, shut the door, and got in bed. Within a few minutes, Christy’s bedroom door

opened. Appellant turned on the light and called Christy’s name. He closed the door behind him

and climbed on top of her. Christy tried to push him away, kicking and struggling. He held her

hands and crossed her hands and arms around her neck. The pressure appellant applied was

strong, and Christy told appellant she could not breathe. Appellant then started to pull her

underwear. Christy continued to struggle to get appellant to release her. As they struggled,

Christy hit her head on the bed frame and fell on the floor. Appellant let go of her when she fell,

and Christy used her phone to call 911.

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       Rockwall Police Officer James Williams was dispatched to the residence at about

midnight on June 22, 2013. Christy answered the door and told Officer Williams what had

happened. According to the officer, Christy told him she was lying in her room when appellant

came in, shut the door, got on top of her, and began holding her down. Christy told appellant to

leave her alone and leave the room. Appellant did not get off of her. He positioned her arms

around her neck and squeezed. Christy could not breathe for a few seconds. Officer Williams

testified Christy looked fearful and upset. Appellant denied that anything had happened. He told

the officer he had gone to his wife’s room to console her and ask her what was wrong. After

Officer Williams spoke to Christy and to appellant, he placed appellant under arrest. Another

officer who was called to the scene, Officer Wendy White, gave similar testimony about

Christy’s demeanor and what Christy said about appellant’s actions that night.

       Appellant was the sole witness for the defense. According to appellant, he went to his

wife’s room that night and called her name to see if she would come to the master bedroom. He

lay down in bed with her and held her, trying to be romantic. She began yelling and told him to

get out. Appellant denied assaulting Christy and denied preventing her from getting off the bed.

       The jury found appellant guilty of assault and not guilty of unlawful restraint. The court

assessed punishment for the assault at 365 days in the Rockwall County Jail, probated for

twenty-four months, and a $2,000 fine. This appeal followed.

                                 DENIAL OF MOTION TO SEVER

       In his first issue, appellant contends the trial court erred in denying his motion to sever

the two offenses. Prior to jury selection on the first day of trial, July 14, 2015, defense counsel

asserted appellant was entitled to a severance under penal code section 3.04. Counsel filed a

written motion for severance that morning and noted he had made an oral motion for severance

at the last pretrial hearing. The trial court confirmed that the issue was brought up orally during

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pretrial a few days earlier on July 9, 2015. The State argued that the motion was not timely as it

needed to be made at least seven days before the pretrial hearing. The trial court denied the

motion to sever.

       Section 3.02 of the penal code permits the consolidation of separate criminal charges

against a single defendant that arise out of a single criminal episode. Werner v. State, 412

S.W.3d 542, 546 (Tex. Crim. App. 2013); see TEX. PENAL CODE ANN. § 3.02(a) (West 2011).

Under section 3.04(a), however, a defendant has an absolute right to sever most charges that

have been consolidated under section 3.02. Werner, 412 S.W.3d at 546; TEX. PENAL CODE ANN.

§ 3.04(a) (West 2011). When a defendant timely requests a severance under section 3.04, his

right to a severance must be granted. Coleman v. State, 788 S.W.2d 369, 371 (Tex. Crim. App.

1990). Under article 28.01 of the code of criminal procedure, a defendant is required to make a

motion to sever pretrial. See Thornton v. State, 986 S.W.2d 615, 617–18 (Tex. Crim. App.

1999). Section two of article 28.01 provides that when a criminal case is set for a pretrial

hearing, any preliminary matters not raised or filed seven days before the hearing will not

thereafter be allowed to be raised or filed, except by permission of the court on good cause

shown, provided the defendant had sufficient notice of the hearing to allow him ten days to raise

or file such preliminary matters. TEX. CODE CRIM. PROC. ANN. art. 28.01, § 2 (West 2006). In

other words, if the defendant has had at least seventeen days’ notice of the pretrial hearing, he

must file pretrial motions at least seven days in advance of that hearing. Sells v. State, 121

S.W.3d 748, 763 (Tex. Crim. App. 2003).

       The parties disagree about whether appellant’s motion for severance was timely.

Appellant asserts he did not have seventeen days’ notice of the pretrial hearing and thus was not




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bound by the requirement that he file pretrial motions at least seven days before the hearing. 2

The State maintains the motion was untimely. We need not determine the issue to resolve this

appeal. We will assume, without deciding, that the trial court erred in denying appellant’s

motion to sever. A trial court’s failure to grant a mandatory severance under section 3.04 is

subject to a harm analysis, and the error is harmless if it did not adversely affect the defendant’s

substantial rights. Scott v. State, 235 S.W.3d 255, 257 (Tex. Crim. App. 2007); see TEX. R. APP.

P. 44.2(b); Werner, 412 S.W.3d at 548. We assess harm after reviewing the entirety of the

record, including the evidence, the jury charge, closing arguments, voir dire, and any other

relevant information. Werner, 412 S.W.3d at 547. When there is a substantial overlap of

evidence between the two consolidated charges, the failure to sever is most likely to be harmless.

Id. at 548–49. Although the entire record must be examined, the overlap of evidence is the most

important factor. Id. at 549.

           A person commits the offense of unlawful restraint by intentionally or knowingly

restraining another person. TEX. PENAL CODE ANN. § 20.02 (a) (West 2011). In appellant’s case,

it was alleged he restrained his wife by holding her down against the bed and not allowing her to

get up. The prosecutor argued in closing to the jury that appellant restrained Christy by using

the force of his body to confine her in bed.

           In his brief, appellant concedes that much, if not all, of the evidence would have been

admissible in both trials. The facts relating to the alleged assault and the alleged unlawful

restraint were completely intertwined. Appellant’s wife testified that as appellant was using her

arms to apply pressure to her neck, he was also on top of her and she could not get up. The

alleged unlawful restraint was admissible as same transaction contextual evidence.                                                      Same


     2
       Although article 28.01 gives the trial court discretion to consider untimely pretrial motions upon a showing of good cause, appellant does
not argue on appeal that he showed good cause.



                                                                     –5–
transaction contextual evidence is evidence of another crime or act that is so intertwined with the

charged offense that full proof of either crime cannot be had without eliciting testimony of the

other. King v. State, 189 S.W.3d 347, 354 (Tex. App.—Fort Worth 2006, no pet.). The granting

of a severance does not automatically preclude the admission of extraneous offenses that are

same transaction contextual evidence. Id.

        Appellant urges that the overlap in evidence is just one step in the analysis and that other

factors establish that he was harmed. Appellant first asserts the harm in this case derives from

the fact that he faced two charges and the jury heard about two distinct offenses throughout the

proceedings. But this is true in any consolidated trial. Appellant also argues that the harm was

compounded because when testifying about seeking an emergency protective order in the case,

Officer Williams mentioned “an incident a year before.” Upon appellant’s objection, the trial

court instructed the jury to disregard that testimony, and we presume the jury followed the

instruction. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). The court

denied appellant’s request for a mistrial. The Court of Criminal Appeals has instructed that the

substantial overlap of evidence is the most important factor in analyzing harm from the denial of

a motion to sever. See Werner, 412 S.W.3d at 549. After examining the entire record in this

case, we conclude that the substantial overlap of evidence is the decisive factor in this case.

Appellant’s substantial rights were not affected by the denial of the motion to sever. We

overrule appellant’s first issue.

                               LIMITATION OF CROSS-EXAMINATION

        In his second issue, appellant contends the trial court erred in sustaining the State’s

objection to appellant’s question to Officer Williams about the original charge filed against

appellant. The State responds that appellant has not preserved this issue for our review. We

agree with the State.

                                                –6–
       On cross-examination, defense counsel asked Officer Williams if he filed attempted

sexual assault charges against appellant. After the officer answered that he did not, counsel

started to follow up with a question about the charges he did file. The State objected. There was

some discussion off the record and some on the record, outside the presence of the jury.

Appellant’s counsel wanted to inquire whether Officer Williams initially filed the case as an

assault impeding breath, which would have been a third-degree felony, instead of the Class A

misdemeanor of assault on a family member. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B)

(West Supp. 2016). The court ruled that appellant could not question the officer about the level

of the charges or whether certain facts would give rise to a felony, stating, “the line of

questioning that’s been discussed here will be irrelevant.”

       Appellant argues the testimony he sought to elicit from the officer was relevant and that

the court erred by prohibiting such inquiry. He maintains the purpose of the testimony was to

show that Christy’s version of the events did not support the charges filed, and the charges had to

be reduced from assault impeding breath to assault family violence. But error in the exclusion of

evidence may not be urged unless the proponent perfected an offer of proof or a bill of

exceptions.   Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); TEX. R. EVID.

103(a)(2). Unless the record shows what the excluded testimony would have been, or the

proponent of the evidence offers a statement concerning what the excluded evidence would have

shown, nothing is preserved for review. Guidry, 9 S.W.3d at 153. Here, appellant did not take

any steps to ensure that the record reflected the substance of the testimony he sought. We

overrule appellant’s second issue.




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       We affirm the trial court’s judgment.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b).

150943F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NDUBUISI NKALARI, Appellant                         On Appeal from the County Court at Law,
                                                    Rockwall County, Texas
No. 05-15-00943-CR        V.                        Trial Court Cause No. CR13-1057.
                                                    Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee                        Fillmore and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of February, 2017.




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