                                    NO. 07-03-0287-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                    JUNE 28, 2005
                           ______________________________

                                     BILLY D. HAYES,

                                                                         Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                                         Appellee
                         _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2003-402,612; HON. CECIL PURYEAR, PRESIDING
                        _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Billy D. Hayes appeals from his convictions on two counts of aggravated sexual

assault and two counts of indecency with a child. His sole issue concerns the trial court’s

implicit determination that trying the multiple offenses in the same proceeding did not

unfairly prejudice him. According to appellant, the trial court had the “obligation to set forth

its reasoning on the record, with or without request from either counsel, for its grant or

denial of a request for severance where Texas Penal Code 3.04(b) . . . is implicated.”
Because the trial court did not, it allegedly erred. We overrule the issue and affirm the

judgment.

        According to §3.04(a) of the Texas Penal Code, “[w]henever 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 . PEN . CODE ANN . §3.04(a) (Vernon 2003). Yet,

the “right to severance . . . does not apply to a prosecution for offenses described by

Section 3.03(b)(2) [of the same Code] unless the court determines that the defendant or

the state would be unfairly prejudiced by a joinder of offenses . . . .” Id. §3.04(c). Here, all

involved concede that the offenses for which appellant was tried come within the scope of

§3.04(c). Thus, he had no automatic right to severance, but rather severance depended

upon a finding of undue prejudice.1

        Next, the record discloses that though appellant moved for severance immediately

before trial began and the trial court denied the motion without explaining why, appellant

did not object to the lack of an explanation. This alone warrants rejection of his issue for

one must preserve his complaint about supposed error through a timely or

contemporaneous objection or request. TEX . R. APP . P. 33.1(a). Appellant having failed

to object to the omission or request that the trial court make findings, the issue was not

preserved.

        Yet, even if appellant preserved his complaint, we nonetheless would remain

obligated to reject it. This is so for several reasons. First, noticeably absent from the

wording of §3.04 of the Penal Code is any requirement that the trial court inform the


        1
         W e note the absence from appellant’s brief of argument purporting to illustrate that he suffered any
prejudice, mu ch les s unfair preju dice.

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litigants why it opted to grant or deny a motion to sever under §3.04(c). Given that it is the

function of the legislature to create law, not the courts, we hesitate to write into §3.04 that

which the legislature omitted.

       Furthermore, we note the similarity between the test mandated by §3.04(c) and that

of Texas Rule of Evidence 403. The latter also deals with the issue of unfair prejudice, but

in the context of admitting evidence at trial. And, if the court finds that the admission of a

particular bit of evidence would, among other things, “unfairly prejudice” a litigant, it may

exclude the item. TEX . R. EVID . 403. Moreover, in determining whether such prejudice

exists, the trial court must undertake a balancing test; that is, it must balance the probative

value of the evidence against its potential for unfair prejudice. Yet, no independent hearing

need be convened for it to fulfill the duty. Patino v. State, No. 03-0131-CR, 2005 Tex. App.

LEXIS 3934 at 5-6 (Tex. App.–Amarillo May 19, 2005, no pet.); Franco v. State, 25 S.W.3d

26, 28 (Tex. App.–El Paso 2000, pet. ref’d). Nor must it illustrate, of record, that it

undertook the requisite balancing. Patino v. State, 2005 Tex. App. LEXIS 3934 at 5-6;

Parmer v. State, 38 S.W.3d 661, 670 (Tex. App.–Austin 2001, pet. ref’d). Indeed, by the

trial court considering and overruling the objection, it can be said that it necessarily

engaged in the requisite balancing. Patino v. State, 2005 Tex. App. LEXIS 3934 at 5-6;

Parmer v. State, 38 S.W.3d at 670.

       To the extent that the Court of Criminal Appeals has set up a mechanism by which

a trial court must analyze the potential for unfair prejudice under one circumstance, there

seems little reason to implement a different mechanism when the same test (i.e. unfair

prejudice) is involved under another circumstance. Simply put, we see no reason to

reinvent the wheel. So, to the extent that §3.04(c) of the Penal Code obligates the trial

                                              3
court to assess the potential for unfair prejudice, we hold that it may utilize the analytical

mechanism applied when facing a Rule 403 objection. That is, it need not illustrate, of

record, how it undertook the requisite analysis. Nor must it specify the indicia or evidence

it considered during its analysis. And, unless the record affirmatively shows otherwise, we

may presume that by acting upon the request, it performed the duties imposed by §3.04(c),

and the record does not so illustrate here.

       Thus, we overrule appellant’s sole issue and affirm the judgment.



                                                         Brian Quinn
                                                         Chief Justice



Publish.




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