Opinion issued September 4, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00300-CR
                           ———————————
                   ARNOLDO VARA TORRES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1317308



                         MEMORANDUM OPINION

      A jury convicted appellant, Arnoldo Vara Torres, of murder,1 acquitted him

of aggravated assault with a deadly weapon,2 and assessed his punishment at 30

1
      See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
2
      See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011).
years’ confinement. In his sole issue on appeal, appellant contends the trial court

erred in consolidating the two indictments for trial over his objection. We affirm.

                                 BACKGROUND

      On August 7, 2011, Rachel Ruiz Soto took her 8-year-old son, J.C., to a

birthday party at an apartment complex in Houston. Rachel, J.C., and his siblings

had previously lived at the complex for a short period of time before moving to

Louisiana. When they lived there, they resided in apartment 39 with Robert

Juarez, who was confined to a wheelchair. Rachel had been briefly involved with

Robert’s nephew, Reece Gonzalez. Rachel also had friends, Chaparro and Guerro,

who lived in apartment 5. Appellant often “hung out” with Chaparro and Guerra at

their apartment.

      On the day of the party, J.C. played on a waterslide outside before going to

Chaparro’s and Guerra’s apartment to change clothes. He then went back outside

to watch his friends play on the waterslide for a while. J.C. decided that he wanted

to buy some cookies from a lady selling baked goods at the complex, so he went in

search of Rachel. J.C. thought that his mother might have gone to apartment 39 to

visit Robert, so he went there. He did not find his mother, but when he looked in

the window, he saw appellant standing behind Robert and holding a knife to

Robert’s throat. He also saw Guerro stabbing Robert’s nephew, Reece, while




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Chaparro stood nearby laughing. Reece tried to fight back by hitting Guerro in the

head with a statue.

      Appellant, Chaparro, and Guerro left the apartment. While Chaparro and

Guerro headed to the parking lot, appellant went to apartment 5, grabbed his keys,

and the three men left the complex. The man throwing the birthday party, Leonel

Guzman, saw the men leave apartment 39 and noticed that Guerro’s head was

bleeding. In the meantime, a scared J.C. returned to the waterslide and pretended

that he was playing so the men would not know that he had seen what happened.

      Reece also fled the apartment and tried to get to his car, but he soon

collapsed outside and died of multiple stab wounds.         J.C. ran to Reece and

comforted him as he lay dying.

      Rachel and Guzman went to apartment 39 to try and figure out what had

happened. Robert, who was still inside the apartment, would not talk to Guzman,

but allowed Rachel to enter. Rachel saw blood all over the place and asked Robert

why he did not help Reece. Robert replied that appellant held a knife to his throat.

      Rachel gave a statement to police before returning with her family to her

home in Louisiana. While driving home, J.C. told his mother what he had seen.

Rachel called the Houston police to tell them what her son knew, and officers came

to interview J.C.




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      Appellant was indicted for the murder of Reece and the aggravated assault

of Robert. The State moved to consolidate the charges into a single trial and to

have any sentences imposed run consecutively. The trial court granted the motion.

Before trial, appellant’s counsel objected to joining the cases for trial. The trial

court overruled the motion, and the cases proceeded to trial. The jury found

appellant guilty of Reece’s murder, but acquitted him of Robert’s aggravated

assault. This appeal followed.

                                  SEVERANCE

      In his sole issue on appeal, appellant contends the trial court erred in

denying his severance request pursuant to Section 3.04 of the Penal Code, which

provides that “[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. PENAL CODE ANN. § 3.04 (Vernon 2011).3

Standard of Review and Applicable Law

      We review the decision of a trial court to grant or deny a severance request,

based upon a statute, for an abuse of discretion. Salazar v. State, 127 S.W.3d 355,

365 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Section 3.04(a) grants

defendants an absolute right to sever consolidated charges, except those excluded


3
      The severance statute also contains exceptions for several enumerated offenses
      that are not applicable here. See TEX. PENAL CODE ANN. §§ 3.04(c), 303(b)
      (Vernon 2011).
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by 3.04(c), and the trial court does not have discretion to deny such a motion.

Werner v. State, 412 S.W.3d 542, 546–47 (Tex. Crim. App. 2013). If the trial

court erroneously denies a severance motion, we review the error for

nonconstititional harm. Id. at 547. We assess harm after reviewing the entirety of

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

any other relevant information. Id. If the error did not adversely affect the

defendant’s substantial rights, then it is harmless. TEX. R. APP. P. 44.2(b); Werner,

412 S.W.3d at 547 (holding severance error harmless when significant overlap of

evidence and evidence of guilt overwhelming); Scott v. State, 235 S.W.3d 255, 257

(Tex. Crim. App. 2007) (error harmless when significant overlap of evidence).

Analysis

      The State concedes the trial court erred in denying appellant’s severance

motion, but contends that the error was harmless. We agree.

      In Llamas v. State, the trial court erroneously consolidated a drug charge

with a motor vehicle charge. 12 S.W.3d at 470. When the defendant was arrested

on the motor vehicle charge, officers searched his truck and discovered cocaine.

Llamas v. State, 991 S.W.2d 64, 66 (Tex. App.—Amarillo 1998), aff’d, 12 S.W.3d

469 (Tex. Crim. App. 2000). The court of criminal appeals held that the erroneous

denial of the appellant’s motion to sever was harmful because, but for the

erroneous consolidated proceeding, the jury would not have heard any evidence

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about the drugs and might well have convicted the defendant, not because the State

proved the elements beyond a reasonable doubt, but because the defendant was a

“bad man” who committed other crime and therefore probably committed the

motor-vehicle offense also. Llamas, 12 S.W.3d at 472.

      By contrast, in Scott v. State, 235 S.W.3d 255 (Tex. Crim. App. 2007), the

defendant was charged with three similar, but distinct crimes: inducing sexual

performance by a child, producing or promoting a sexual performance by a child,

and possession of child pornography. Id. at 256. The court held that because

“there [was] so much overlap in the evidence used to support” all three charges, the

defendant suffered no harm from having the charges tried together. Id. at 259–61.

The court also noted that the defendant did not show how his defensive strategy

might have been different had the charges had been severed. Id. at 261.

      Finally, in Werner v. State, the trial court erroneously denied the appellant’s

motion to sever two stalking offenses.         412 S.W.3d at 547.          However,

distinguishing Lamas, the court held that the error was harmless because “[h]ad the

two stalking charges been tried separately, evidence of the underlying conduct in

the April [stalking] incident would have been admissible at the trial concerning the

July stalking incident.” Id. at 549. The Werner court described the most important

consideration in determining harm to be the potential overlap of the evidence:

      When there is no overlap of evidence between the two charges, as in
      Llamas, the failure to sever is most likely to be harmful. When there
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      is a substantial overlap of evidence between the two charges, as in
      Scott, the failure to sever is most likely to be harmless. Although the
      entire record must be examined, the overlap of evidence is the most
      important factor under Llamas and Scott.

Id. at 548–49.

      Here, the same evidence would have been admissible even if both the

aggravated assault and the murder case had been tried separately.               Same

transaction contextual evidence is evidence of other offenses connected with the

offense charged and, as such, is admissible as an exception under TEX. R. EVID.

404(b) when the evidence is necessary to the jury’s understanding of the charged

offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). J.C.’s

testimony about what he saw through the window would not have been complete

without his description of appellant restraining Robert with a knife while Guerro

stabbed Reece, and appellant then retrieving his keys and fleeing with Chaparro

and Guerro. As such, it was same transaction contextual evidence, and J.C.’s

testimony about what he saw would have been admissible at both trials. This is not

a situation, as presented in Llamas, in which the trial court “tried an ‘apples’

offense along with an unrelated ‘oranges’ offense in the hope that the jury would

find the defendant guilty of being a generally bad sort.” Werner, 412 S.W.3d at

548 (describing the erroneously consolidated drug and motor vehicle offenses in

Llamas).



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      Appellant argues that he “quite possibly would not have been convicted for

either offense had he been granted his request for separate trials”; however, he

does not argue how his defensive strategy might have been different had the

charges been severed. See Werner, 412 S.W.3d at 548 n.35 (considering lack of

evidence regarding defensive strategy in considering whether appellant had shown

harm in denial of severance).

      The prosecutor did discuss both charges during closing arguments, but, as in

Werner, such argument was appropriate because “all of the evidence [regarding

both offenses] was admissible and therefore available for the prosecutor to use at

trial. Werner, 412 S.W.3d at 551.

      There is nothing in the record to suggest that the jury convicted appellant of

murder simply because he was a “bad sort,” as suggested by Werner as a reason for

finding improper consolidations harmful. 412 S.W.3d at 548. The jury’s questions

to the judge during deliberation made clear that it was considering the charges

separately.   Specifically, the jury asked about the sentencing range for each

offense, whether the punishments would be stacked, and, the jury actually

acquitted appellant of the aggravated robbery charge.

      Because the same evidence would have been admissible had the charges

been severed and nothing else in the record shows that the erroneous consolidation

affected appellant’s substantial rights, we find that the trial court’s refusal to sever

                                           8
the charges was harmless error. See Walls v. State, No. 03-12-00055-CR, 2014 WL

1208017, at *3 (Tex. App.—Austin Mar. 20, 2014, no pet.) (memo. op., not

designated for publication) (holding no harm in trial court’s failure to sever when

same evidence would have been admissible in both cases as “same transaction

contextual evidence” had cases been tried separately).

      We overrule appellant’s sole point of error.

                                    CONCLUSION

      We affirm the trial court’s judgment.



                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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