


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-04-00048-CR
 
Shannon James Wheat,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 272nd District Court
Brazos County, Texas
Trial Court # 03-02353-CRF-272
 

Opinion on remand

 
Appellant, Shannon James Wheat,
was convicted on a three count indictment.  In front of the jury, Wheat pled
guilty to counts one and three alleging indecency with a child (two different
victims), and he pled not guilty to count two alleging sexual assault with the
same victim and offense-date as count three.  The guilt-innocence phase of
count two followed.  Wheat was convicted by the jury on all three counts.[1] 
After a punishment hearing, the jury assessed punishment at seven years and a
fine of $5,000 on the first count, 15 years and a $5,000 fine on the second
count, and eight years and a $5,000 fine on the third count.  The trial court cumulated
the three sentences.
Wheat raised six issues
concerning admonishments, severance of the second count from the first and
third counts, charge error, lack of a pre-sentence report, and error in
cumulating the sentences.  The State admitted error in two issues.  We
sustained a severance issue, severed count two from the others, and ordered a
new trial as to count two and a new punishment hearing as to counts one and
three.
            In a per curiam opinion,
the Court of Criminal Appeals, noting that the State complained that we failed
to do a harm analysis on the severance issue and that Wheat complained that we
failed to conduct a harm analysis on the admonishment issue that the State had
conceded, summarily vacated our judgment and remanded the cause.  Wheat v.
State, 178 S.W.3d 832, 833 (Tex. Crim. App. 2005) (per curiam) (citing Cain
v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (“except for certain
federal constitutional errors deemed structural by the United States Supreme
Court, no error is categorically immune from a harm analysis”)); see also
Llamas v. State, 12 S.W.3d 469, 470-71 (Tex. Crim. App. 2000) (harm
analysis in failure to grant mandatory right of severance).
HARM FROM FAILURE TO SEVER?
Texas Penal Code section
3.04(c) states:
The right to severance under this
section does not apply to a prosecution for offenses described by Section
3.03(b)(2)[2]
unless the court determines that the defendant or the state would be unfairly
prejudiced by a joinder of offenses, in which event the judge may order the
offenses to be tried separately or may order other relief as justice requires.
 
Tex. Pen. Code
Ann. § 3.04(c) (Vernon Supp. 2005). 
Arguments on Remand
Among the arguments Wheat advances
on remand to demonstrate that harm flowed from the failure to sever are:

Counsel
     was compelled to inform the jury panel of Wheat’s intent to plead guilty
     to two offenses while maintaining his innocence as to the third;

 

Wheat
     was required to enter his plea of guilty to two counts before the same
     jury that was about to try him for the third;

 

Those
     two pleas were unadmonished pleas;

 

Trial
     on those two counts was erroneously bifurcated;

 

The
     prosecutor’s reliance on the guilty pleas in the determination of
     guilt-innocence on the contested count;

 

The
     trial court’s sua sponte instruction that the jury could consider the
     guilty pleas as evidence on the contested count;

 

No
     limiting instructions in the court’s charge during the guilt-innocence
     phase;

 

The
     jury was directed to find Wheat guilty on the two uncontested counts; and

 

The
     uncontested counts were alluded to during jury selection, opening
     statements, and the prosecutor’s final argument.

 
The State continues to rely on Salazar
v. State because, it says, it is “likely” that the testimony of the victims
in counts one and three would have been admissible to refute Wheat’s defensive
theory even if the cases had been tried separately.[3] 
See Salazar v. State, 127 S.W.3d 355, 365 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d).  We rejected that argument in our original opinion,
along with one based on Matthews v. State, 152 S.W.3d 723, 730-31 (Tex.
App.—Tyler 2004, no pet. h.), that it was “probable” that the offenses would be
admitted into evidence.  We further note that even if those theories are
applicable, pleas of guilty before the jury at the beginning of a trial are
qualitatively different from and have a different effect than evidence presented
as extraneous offenses during trial.
The State also relies on the absence of
remarks from the jury panel concerning the impact of the guilty pleas, the
defense’s ability to present evidence and argument on the contested offense, an
instruction the trial court gave during the State’s opening argument, and the
nature of the defense presented, i.e., that the victim was under the age
of 14.
Factors to Consider
In assessing the likelihood
that the jury's decision was adversely affected by the error, we consider
everything in the record, including any testimony or physical evidence admitted
for the jury's consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case.  Morales v. State, 32 S.W.3d
at 862, 867 (Tex. Crim. App. 2000).  We can also consider the jury instructions
given by the trial judge, the State's theory and any defensive theories,
closing arguments and even voir dire, if material to appellant's claim.  Id.
Discussion
Reviewing under an
abuse-of-discretion standard, we found that the trial court erred in failing to
determine that the defendant would be unfairly prejudiced by the failure to
sever offenses under these circumstances.  See id.; Wheat v. State, 160 S.W.3d 631 (Tex. App.—Waco, 2005), rev’d, 178 S.W.3d 832, 833 (Tex. Crim. App. 2005) (per curiam).  But
our opinion went further and found that Wheat had been unfairly prejudiced by
the failure to sever.  Wheat, 160 S.W.3d at 637.  We now reiterate that
finding to determine that the error “had a substantial or injurious affect on
the jury verdict.”  See Morales, 32 S.W.3d at 867 (DWI prosecution;
citing Llamas, 12 S.W.3d 469, 471 n.2).
We detailed the bifurcation
problem, the arguments made to the trial court about the consequences of
failing to grant the motion to sever, the statements made by counsel to the
jury about the guilty pleas, the defense strategy in light of the motion’s
denial, the uncertainty in analyzing what would have happened had the motion
been granted, and other factors in our original opinion.  Wheat, 160
S.W.3d at 634-36.  Based on that analysis and on our review of the evidence
admitted, the character of the error and how it interacted with the evidence
and theories actually presented in the case, the jury instructions given at
various times by the trial judge, the State's theory and any defensive
theories, the presentations, opening statements and closing arguments as they
relate to Wheat’s claim, we find that the error had a substantial or injurious effect
on the jury verdict, thereby affecting Wheat’s substantial rights.  Morales,
32 S.W.3d at 867; Tex. R. App. P.
44.2(b); see also Scott v. State, 173 S.W.3d 856, 868-69 (Tex.
App.—Texarkana 2005, pet. granted).
Counts one and three should
have been severed from count two, and a unitary proceeding should have been
conducted for counts one and three.  Because the trial court did not sever and
because that decision resulted in harm to Wheat, we again sustain issue two.
Failure to Admonish
Because we will reverse for
a new trial on count two and a new punishment hearing on counts one and three,[4]
we do not reach the question of whether the failure to admonish, conceded by
the State to be error, harmed Wheat.
CONCLUSION
  We reverse the judgments,
sever count two from counts one and three, and remand the cause for a new trial
on count two and a new punishment hearing on the guilty pleas to counts one and
three.  See Tex. Code Crim. Proc.
Ann. art. 44.29 (Vernon Supp. 2005).
 
BILL VANCE
Justice
 
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
            (Chief
Justice Gray dissenting)
Judgments
reversed, counts severed, and cause remanded
Opinion
delivered and filed June 7, 2006
Publish
[CRPM]




    [1]       The court instructed the jury to find him guilty
of counts one and three.


    [2]       Section
3.03(b)(2) includes all these offenses.


    [3]           The
  San Antonio Court reached essentially the same result in Tovar v. State,
165 S.W.3d 785 (Tex. App.—San Antonio 2005, no pet.).


    [4]           Wheat’s
brief on remand does not request a new trial on counts one and three.


