              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                              NOS. PD-0326-13 & PD-0327-13



                           DIETER HEINZ WERNER, Appellant

                                              v.

                                  THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIRST COURT OF APPEALS
                              HARRIS COUNTY

         C OCHRAN, J., delivered the opinion of the unanimous Court.

                                        OPINION

         In two separate indictments, appellant was charged with stalking his former

girlfriend.1 Before trial, the judge permitted the State to consolidate the offenses and denied

appellant’s motion to sever. The jury convicted appellant of both offenses, and the trial judge

assessed punishment at ten years’ confinement for each offense, to run concurrently. On

appeal, appellant argued that the trial judge erred by denying his motion to sever. The court



1
    See TEX . PENAL CODE § 42.072(a).
                                                                                  Werner     Page 2

of appeals agreed, holding that appellant had an absolute right to sever under Section 3.04

of the Texas Penal Code. Finding the error harmful, the court of appeals reversed appellant’s

conviction and ordered a new trial.2

       We granted the State Prosecuting Attorney’s (SPA’s) petition to decide if denying a

severance motion is harmful error when the evidence of guilt is overwhelming for the first

offense and evidence of that first offense would have been admissible in a trial of the second

offense.3 Because the State was entitled to offer evidence of appellant’s prior acts of

harassment relevant to the first stalking offense to prove the elements of the second stalking

offense, we conclude that the error was harmless under T EX. R. A PP. P. 44.2(b).

                                                 I.

       The first indictment alleged that appellant stalked his ex-girlfriend, D.D., during

March and April 2010; the second alleged that appellant stalked her on July 13, 14, and 16,

2010. The prosecutor moved to consolidate the two cases for a single trial. Appellant then

filed a motion to sever the April stalking charge from the July one. At a pre-trial hearing, the

prosecutor argued that proceeding with a single trial would promote judicial economy

because the State planned to offer evidence of both offenses to establish its case-in-chief.


2
  Werner v. State, Nos. 01–11–00464–CR, 01–11–00465–CR, 2013 WL 824040 (Tex.
App.—Houston [1st Dist.] Feb. 21, 2013) (not designated for publication).
3
 The State’s grounds for review are as follows:
(1)   Is error in failing to sever offenses that are inextricably intertwined harmful when evidence
      of one would be admissible to prove the other if they were tried separately?
(2)   Is error in failing to sever offenses harmful as to an offense for which the evidence of guilt
      is overwhelming?
                                                                               Werner    Page 3

The prosecutor explained that Rule 404(b) allows the State to offer evidence of a common

intent and a continuing course of conduct, and she stated that both stalking incidents involved

the use of GPS tracking devices and harassing text messages. Appellant said that trying two

incidents “involv[ing] different fact patterns and different time periods” together would

prejudice the jury against him. The trial judge denied appellant’s motion to sever, stating that

consolidation “would not unduly prejudice the defendant” because the evidence of

appellant’s course of conduct would be admissible to prove his intent.

       The evidence at trial showed that appellant and D.D. had an on-again, off-again

relationship for over a year until appellant ended the relationship because they did not have

sex frequently enough. In October 2009, several months prior to the break-up, appellant

began text messaging D.D., asking about her whereabouts and activities. D.D. thought little

of it at first, but eventually grew to harbor nagging doubts about his questioning.

       Appellant continued to communicate with D.D. after their break-up in January 2010,

messaging her repeatedly if she failed to reply to his texts. D.D.’s suspicions grew as

appellant’s messages showed an inexplicable familiarity with her and her family’s

whereabouts. For example, in January of 2010, D.D.’s grandmother became ill, and D.D.,

planning to spend the night with her in the I.C.U., asked the mother of her daughter’s

boyfriend if her daughter could spend the night at their house. Appellant texted D.D.

throughout the night while she was at the I.C.U. He was upset because D.D. was to have met

him that night for drinks. The next morning, appellant called D.D. and told her that her
                                                                                 Werner     Page 4

daughter had spent the night with her boyfriend. D.D. had known that, of course, but she was

worried about how appellant would know her daughter’s whereabouts. He sent D.D. more

text messages that month, warning her that he was going to send letters to D.D.’s mother and

grandmother telling them that D.D.’s daughter had spent the night at her boyfriend’s house.

He did send the letters and wrote that he didn’t approve. He also wrote them about how

D.D., her daughter, and the boyfriend had gone to San Antonio for a “cheer competition.”

D.D. was afraid that appellant “could go after my daughter” and hurt her, as well as D.D.

       D.D.’s concerns came to a head in March when she went to the Houston rodeo and

saw Sgt. Montemayor, an old friend of hers, who was a Sheriff’s officer. D.D. had just

received a text message from appellant saying, “I think you should go to the rodeo.” D.D.

looked “frazzled” and “unnerved,” and she “threw a fit” to make Sgt. Montemayor check for

a tracking device on her car. Sgt. Montemayor checked her car just to humor D.D. and was

very surprised to find a tracking device under the passenger’s side back bumper.4 He told

D.D. to file an official report, but she didn’t because she couldn’t prove that appellant had

put the device there. She knew that appellant would be really mad if she accused him, but

couldn’t prove it.

       She kept the tracking device, but it seemed that appellant was still tracking her:

           ·   He continued to text-message D.D., “harassing her” and frequently identifying
               her whereabouts and describing her recent movements.



4
 Sgt. Montemayor said that it is a Class A misdemeanor to put a tracking device on someone’s car
without their permission unless it is placed there by law enforcement under authority of a warrant.
                                                                                   Werner      Page 5

             ·   He sent text messages saying, “Pissed me off when I saw you at Kroger and
                 you turned your head. I would never treat you like that,” and “Should have
                 answered the phone and not ignore me again. Pissed me off. Now I show you.
                 Prema D.” 5

             ·   On another occasion, appellant texted D.D. that he knew she had parked in a
                 Dairy Queen parking lot for several hours; indeed, D.D. had parked there while
                 she visited her aunt, who lived behind the Dairy Queen.

             ·   On April 15th, D.D.’s daughter and her girlfriend went to the movies in D.D.’s
                 car. When they came out of the theater, they found that three of the car’s tires 6
                 had been slashed by someone who looked like appellant and who had left in
                 a car that matched appellant’s car. D.D. was really worried because “[i]t was
                 a predator’s dream, two little girls in the movies.”

             ·   Police discovered a second tracking device on D.D.’s car (in the very same
                 place as the first one) when they investigated the tire-slashing incident.

          Other evidence showed that appellant had purchased tracking devices on October 1,

2009; March 6, 2010; and March 12, 2010. He had a monthly subscription to a service that

informed him of the trackers’ location every ten seconds, and the tracking history for those

devices corresponded with D.D.’s self-reported activities and appellant’s text messages.

          Following these incidents, appellant was indicted for stalking, and, on May 16th, a

magistrate issued a sixty-day emergency restraining order, prohibiting appellant from coming

within 200 feet of D.D., her workplace, or her residence. While the order was in effect, D.D.

saw appellant drive past her home on two occasions in July, but he did not call or text her.



5
    D.D. thought that appellant meant to say that she was a “prima donna.”
6
  D.D. explained that she was not surprised that three tires were slashed because “the first time” two
tires on her grandmother’s Explorer had been slashed, but it had been “an easy fix.” This time her
car had to be carried away on a flatbed truck.
                                                                             Werner     Page 6

Her daughter also saw appellant drive by a spot where she had just dropped off D.D.

       On July 16, the day after the restraining order expired, D.D. drove to her bank ATM

and saw appellant’s car parked at a defunct drive-through window nearby. D.D. was afraid

that “he was coming after [her].” D.D. went across the street to the Valero gas station and

found two police officers inside. She was “panicked” and “very emotional” when she talked

to Officer Werner (no relation to appellant). She told him that she had a protective order and

that the “stalker” was outside. She gave the officers a copy of her protective order.

       Officer Werner drove across the street, approached appellant, and asked him why he

was parked by the drive-through. Appellant gave the officer several inconsistent responses:

He claimed that he was waiting for a Home Depot to open, even though it already was; he

said he was getting gas, even though he had a full tank; he stated that he was getting a

cappuccino from the gas station, even though he was parked across the street; and he asserted

that he had parked briefly to jot down a note, even though none was to be found. Thinking

that the protective order was still in effect and believing that appellant had violated that

order, Officer Werner arrested him. Appellant was charged with the three July stalking

incidents in a separate indictment.

       The defense presented no evidence, and the jury convicted appellant of both stalking

offenses. The trial judge sentenced appellant to ten years’ imprisonment on each indictment,

to be served concurrently. Appellant raised seven points of error on appeal, including his

claim that the denial of his severance motion was harmful error. The court of appeals agreed,
                                                                              Werner       Page 7

reasoning that the evidence for the two offenses was separate and unrelated.7                 By

commingling the evidence, the State “blurred the distinction between the two offenses” 8 and

created the inference that “because [appellant] committed other crimes, he probably

committed [the] crime charged.”9 The court of appeals reversed and remanded the case for

a new trial. We granted review to analyze the distinction between our “book-end” decisions

in Llamas v. State10 and Scott v. State.11

                                               II.

          Section 3.02 of the Texas Penal Code permits the consolidation of separate criminal

charges against a single defendant that arise out of a single criminal episode.12 Separate

offenses are part of a “single criminal episode” if

(1)       the offenses are committed pursuant to the same transaction (a single crime spree) or
          more than one transaction if they are connected by a “common scheme or plan”; or

(2)       “the offenses are the repeated commission of the same or similar offenses.” 13

          Allowing the State to prosecute connected or related charges in a single criminal




7
    Werner, 2013 WL 824040, at *5.
8
    Id. at *7.
9
    Id. at *5.
10
     12 S.W.3d 469 (Tex. Crim. App. 2000).
11
     235 S.W.3d 255 (Tex. Crim. App. 2007).
12
     TEX . PENAL CODE . § 3.02.
13
     TEX . PENAL CODE § 3.01(1), (2).
                                                                                       Werner     Page 8

action, as authorized by Section 3.02, furthers “convenience and efficiency” 14 by curtailing

“piecemeal litigation[,] . . . the antithesis of judicial economy.”15 Although the statute’s

primary purpose is to streamline the judicial process, consolidation also benefits criminal

defendants by requiring concurrent sentencing in most instances.16

          On the other hand, Section 3.04(a) grants defendants an absolute right to sever most

charges that have been consolidated under Section 3.02.17 When a defendant files a motion

for severance, the trial judge does not have discretion to deny that motion unless the

defendant has been charged with an offense listed in Section 3.03(b).18 Texas’ mandatory

severance rule is different from the federal rule of discretionary severance19 and reflects

concerns about the disadvantages defendants may face in a consolidated trial:



14
     Haliburton v. State, 578 S.W.2d 726, 729 (Tex. Crim. App. 1979).
15
  See Ex parte Howard, 685 S.W.2d 672, 674 (Tex. Crim. App. 1985) (Teague, J., concurring and
dissenting).
16
     TEX . PENAL CODE § 3.03(a); Haliburton, 578 S.W.2d at 729.
17
     TEX . PENAL CODE § 3.04(a); Waythe v. State, 533 S.W.2d 802, 804 (Tex. Crim. App. 1976).
18
   TEX . PENAL CODE § 3.04(c). The offenses for which severance is discretionary rather than
mandatory include intoxication assault and intoxication manslaughter, various sexual offenses
involving children, improper photography, child pornography, human trafficking, compelling
prostitution, and certain injury to a child offenses. Id. §§ 3.04(c), 3.03(b). If Section 3.03(b) applies,
the defendant no longer enjoys a right to mandatory severance, but the trial judge may sever charges
if he determines that either the defendant or the State would be unfairly prejudiced by a consolidated
trial. Upon such a finding, “the judge may order the offenses to be tried separately or may order
other relief as justice requires.” Id. § 3.04(c).
19
  Waythe, 533 S.W.2d at 804. In the federal system, the trial judge enjoys broad discretion to sever
offenses if consolidation “appears to prejudice a defendant or the government.” FED . R. CRIM . P.
14(a).
                                                                              Werner       Page 9

           (1) that the jury may convict a ‘bad man’ who deserves to be punished—not
          because he is guilty of the crime charged but because of his prior or
          subsequent misdeeds; and (2) that the jury will infer that because the accused
          committed other crimes, he probably committed the crime charged.20

          Although Section 3.04 was enacted for the defendant’s benefit, the risk he runs in

requesting a severance is that the trial judge then has discretion to require consecutive

sentences if the defendant is convicted in separate trials.21

          If a trial judge erroneously denies a severance motion, we review the error under the

non-constitutional harm analysis of Rule 44.2(b),22 disregarding the error unless it adversely

affects a defendant’s substantial rights.23 Neither the defendant nor the State bears the

burden of demonstrating harm; instead, we assess harm after reviewing the entirety of the

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

relevant information.24

                                                   III.

          In this case, the SPA concedes that the trial judge erroneously denied the motion to

sever. Therefore, our inquiry focuses only on whether appellant suffered actual harm by the

denial of his severance motion. The court of appeals stated that the absence of “concrete



20
     Llamas v. State, 12 S.W.3d 469, 471-72 (Tex. Crim. App. 2000).
21
     TEX . PENAL CODE § 3.04(b); see Haliburton, 578 S.W.2d at 729.
22
     TEX . R. APP . P. 44.2(b); see, e.g., Llamas, 12 S.W.3d at 470.
23
     Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).
24
     Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001).
                                                                                Werner    Page 10

data” in the record strongly influenced its harm analysis.25

           The court relied on Llamas, in which we had found harmful error for the wrongful

denial of a severance motion.26         In Llamas, the trial judge erroneously permitted

consolidation of a drug charge with an unrelated motor-vehicle charge,27 and the jury

acquitted the defendant of the drug charge, but convicted on the vehicle charge.28 During

voir dire, several veniremen commented that evidence relating to the drug charge would

color their inquiry into the defendant’s guilt for the motor-vehicle charge.29 Noting that the

jury would not have heard any evidence about drugs but for the consolidated proceeding, we

concluded that the error was harmful because the jury 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 crimes . . . [and therefore] probably

committed” the motor-vehicle offense.30 The only commonality between the two offenses

was that the police discovered the cocaine at the same time that they arrested the defendant


25
     Werner, 2013 WL 824040, at *4.
26
     Id. at *5.
27
  The defendant was charged with possession of cocaine and possession of a motor vehicle with an
altered vehicle-identification number. Llamas, 12 S.W.3d at 469. The evidence showed that, when
the defendant was arrested on the motor vehicle case, officers searched his truck and found a small
envelope that contained 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).
28
     Llamas, 12 S.W.3d at 469-70.
29
     Id. at 472.
30
     Id. at 471-72.
                                                                                   Werner     Page 11

on the motor vehicle charge. In Llamas, the State had 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.

          The SPA relies on our more recent decision in Scott v. State,31 in which we held that

a failure to sever was harmless in light of the substantial overlap of evidence.32 In Scott, the

defendant was charged with three offenses: (1) inducing sexual performance by a child; (2)

producing or promoting a sexual performance by a child; and (3) possession of child

pornography.33 We noted that evidence of the child-pornography charge would have been

admissible at a trial for the other two charges.34 Because “there [was] so much overlap in the

evidence used to support” all three charges, we concluded that the defendant suffered no

harm from having the child-pornography charge tried with the other two offenses.35 That is,



31
     235 S.W.3d 255 (Tex. Crim. App. 2007).
32
     Id. at 261.
33
     Id. at 256.
34
  Id. at 258 (“Because the conduct captured on the videotapes that formed the basis of Scott’s
possession of child pornography offenses . . . was the same conduct at issue in Counts One and Two,
the circumstances surrounding Scott’s guilty plea to each Count Three would be admissible in a trial
on the other counts.”).
35
  Id. at 259–61. Furthermore, the defendant did not allege how his defensive strategy might have
been different had the charges been severed. Id.; see also Darling v. State, 262 S.W.3d 913, 917-19
(Tex. App.–Texarkana 2008, pet. ref’d) (trial judge’s error in failing to grant severance of aggravated
sexual-assault-of-a-child charges from indecency-with-a-child charge was harmless error; record
contained significant evidence to support jury’s guilt verdict on indecency charge that should have
been severed); Hulsey v. State, 211 S.W.3d 853, 858 (Tex. App–Waco 2006, no pet.) (trial judge’s
implicit determination that joinder would not result in “unfair prejudice” was not abuse of discretion
because defendant’s defense to each charge was same–the victim was lying).
                                                                              Werner    Page 12

the evidence of the child-pornography charge (which the defendant wanted severed from the

other two child-sexual-abuse cases) was admissible in any event, and therefore the overlap

of evidence was, if not complete, at least very substantial.

         Llamas and Scott are “book-end” cases. 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 is a substantial overlap of evidence between the two charges, as in Scott, the

failure to sever is most likely to be harmless.36 Although the entire record must be examined,

the overlap of evidence is the most important factor under Llamas and Scott.

         In this case, the court of appeals rejected the Scott rationale, believing that the two

stalking charges were not based on the same evidence.37 The court of appeals, however,

failed to take into account the unique elements of a stalking offense, a crime that depends

upon proof of a pattern of conduct, not a single act.

         The SPA claims that the record contains ample “concrete data” to establish the

harmlessness of the trial court’s error. First, the SPA argues that the evidence supporting the

April stalking incident was “overwhelming” and eliminated any suggestions that the jury

might not have convicted appellant even if that offense had been tried before the July

stalking incident ever took place. Second, the SPA contends that evidence of appellant’s

underlying conduct leading up to and during the April stalking incident would have been


36
  One might visualize two different Venn diagrams, one in which there is virtually no overlap
between the two circles and one in which the overlap is, if not complete, at least significant.
37
     Werner, 2013 WL 824040, at *6.
                                                                                    Werner     Page 13

admissible at any separate trial of the July incident.

       Our decisions in Llamas and Scott depended on whether evidence was admissible in

the separate cases, and our inquiry here focuses on the same question. Had the two stalking

charges been tried separately, evidence of the underlying conduct in the April incident would

have been admissible at the trial concerning the July stalking incident. Rule 404(b) of the

Texas Rules of Evidence permits the admission of extraneous-offense evidence to prove

elemental facts of the charged offense.38 The evidence of the prior relationship and the April

offense would not have been offered to show that appellant was a bad man who had acted

badly before. Instead, evidence of the history of the relationship between appellant and D.D.,

the escalating incidents of harassment, and the issuance of the protective order would have

been relevant to prove that: (1) appellant intended to place D.D. in fear when he twice drove

by her home in July and then parked near her bank ATM on July 16th; (2) D.D. was actually

placed in fear by appellant’s actions on July 13th, 14th, and 16th; and (3) D.D.’s fear in July

was reasonable.39 These are all elements of the offense of stalking.40

38
  De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Martin v. State, 173 S.W.3d
463, 466 (Tex. Crim. App. 2005).
39
  See, e.g., Brawner v. State, ___ S.W.3d __, __, 2013 WL 3071000, at *10 (Ark. Ct. App. June 19,
2013) (evidence of defendant’s prior bad acts was independently relevant, in prosecution for stalking
and violation of a protective order, to establish victim’s legitimate, imminent fear of death or serious
bodily injury for herself and her family, as well as defendant’s motive and intent); State v. O’Brien,
986 N.E.2d 531, 540-41 (Ohio Ct. App. 2013) (evidence of defendant’s history of stalking and
harassing victim, protection order entered against him, and prior threats to kill victim, was relevant
under Rule 404(b), in trial for felony murder, felonious assault, and related offenses, to show that
defendant had intent to strike victim with his vehicle); Walker v. State, 267 P.3d 1107, 1111 (Wyo.
2012) (acts comprising a course of conduct of harassment admitted as uncharged misconduct proved
an element of the charged offense; “as in all stalking cases, the course of conduct is the criminal act
                                                                                  Werner     Page 14

       Without the evidence of the prior escalation of appellant’s text messaging, his creepy

knowledge of D.D.’s whereabouts, the discovery of two separate illegal tracking devices put

underneath the very same bumper of D.D.’s car on two different occasions, the tire-slashing

incident, and the issuance of the protective order after appellant’s first arrest, the evidence

would probably be insufficient to establish “stalking” in the three July incidents.41 Here, as

in Scott, the evidence of the April and July offenses overlapped substantially, and evidence

of the entire prior relationship between appellant and D.D. would have been admissible to

establish elemental facts of the July offense.42 Severing the charges would have made no


at issue, it is not uncharged misconduct.”); State v. Hormann, 805 N.W.2d 883, 888 (Minn. Ct. App.
2011) (victim’s testimony regarding history of relationship with defendant and evidence that he had
placed a tracking device on her car was not character evidence in prosecution for stalking; rather, it
was relationship evidence relevant to prove that defendant had reason to know his conduct would
cause wife to be fearful); Kenison v. State, 107 P.3d 335, 343-44 (Alaska Ct. App. 2005) (State was
entitled to introduce evidence of defendant’s “entire course of non-consensual contact” with stalking
victim and his repeated harassment and threats offered to prove victim’s fear of defendant).
40
  Under Section 42.072, the State must prove that the defendant, on more than one occasion and
pursuant to a scheme or course of conduct directed specifically at another person, knowingly engages
in conduct that
        (1)     the actor knows or reasonably believes the other person will regard as threatening;
        (2)     causes the other person . . . to be placed in fear . . .; and
        (3)     would cause a reasonable person to fear . . . .
TEX . PENAL CODE § 42.072(a).
41
  See, e.g., McGowan v. State, 375 S.W.3d 585, 590, 593 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d) (in a stalking case, evidence of defendant’s prior emails and blog posts admissible under
TEX . R. EVID . 404(b) to establish complainant’s fears of bodily harm; “The offense of stalking
contemplates the presentation of evidence that covers the entire course of alleged unlawful conduct
specifically directed toward a complainant.”); Pomier v. State, 326 S.W.3d 373, 380 (Tex.
App.–Houston [14th Dist.] 2010, no pet.) (same).
42
  In our view, Scott does not stand for the position that failure to sever constitutes harmless error
only if the same set of evidence proves both charges. For the error to be harmless, Scott requires a
substantial degree of evidentiary overlap, not that the charges rely on identical, metaphysically
                                                                             Werner    Page 15

difference in the evidence presented to a jury deciding appellant’s guilt on the July

indictment.

       Of course, had the charges been tried separately, evidence of the July stalking incident

would not have been admissible at the trial on the April indictment—after all, the July

incidents had yet to occur when the April offense was committed and that indictment was

filed. But testimony concerning the July stalking incident could have had—at most—only

a negligible impact on the jury’s deliberations on the April indictment.

       Standing alone, the State’s evidence against appellant for the April stalking offense

was overwhelming. The trial record paints a vivid picture of surveillance, tracking, texting,

and intimidation that would have had George Orwell himself looking over his shoulder. On

three separate occasions, appellant purchased sophisticated GPS tracking devices, two of

which were later found underneath D.D.’s car. Relying on his access to the trackers’

telemetry, appellant repeatedly sent D.D. text messages to flaunt his familiarity with her

comings and goings and to threaten retaliation or vengeance. Appellant sent inappropriate

letters to D.D.’s mother and grandmother suggesting that D.D. was an unfit mother because

she let her daughter spend the night at her boyfriend’s home. As the final straw, the evidence

showed that three of D.D.’s car tires were slashed by a man who looked like appellant and

who drove a car matching appellant’s car.

       Overwhelming evidence of guilt is a relevant factor in any Rule 44.2(b) harm



indiscernible sets of proof.
                                                                                 Werner    Page 16

analysis,43 and, considering the overwhelming evidence that proved the April incident, any

evidence of the significantly less threatening July incidents would have impacted the jurors’

deliberations only marginally, if at all.

           The court of appeals stated that the prosecution’s “wealth of evidence” actually

increased the likelihood of harm.44 In that court’s view, the overwhelming evidence of the

April offense made the jury more likely to convict appellant for the July offense on the basis

of his prior misdeeds, not the behavior alleged in the indictment. But here, as in Scott, all of

the evidence concerning the April offense would have been admitted at any separate trial on

the July incident. The court of appeals erred in concluding, “Evidence of what appellant did

in March and April is no proof of what appellant did in July.” 45 That might be an accurate

statement for many offenses, but because of the specific elements of the offense of stalking,46

evidence concerning the entire history of appellant’s and D.D.’s relationship (including the

April incidents) would have been admitted to prove the July stalking elements.

           Appellant also contends that the venire members’ statements during voir dire show

prejudice, just as in Llamas, because a couple of jurors indicated that they would not be



43
  Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002). See also, e.g., Whitaker v. State,
286 S.W.3d 355, 363-64 (Tex. Crim. App. 2009).
44
     Werner, 2013 WL 824040, at *5-6.
45
     Id. at *5.
46
  Stalking requires proof that the defendant acted “on more than one occasion and pursuant to the
same scheme or course of conduct that is directed specifically at another person[.]” TEX . PENAL
CODE § 42.072(a).
                                                                                      Werner     Page 17

tolerant of someone who had repeatedly committed the offense of stalking.47 The voir dire

statements were pivotal in Llamas to show harm because that jury had no business

considering the two charges together. Here, on the other hand, the jury would have been

permitted to consider evidence of the April offense when deliberating on the July offense.

          Appellant also claims that the prosecutor’s final argument demonstrated harm because

the prosecutor “freely referred the jury to evidence supporting both cases, switching between

one and the other without making a distinction between the two.”48 Indeed, the prosecutor

did refer back and forth to the evidence concerning the April and July incidents, but that was

entirely appropriate as all of the evidence concerning the history of the relationship between

appellant and D.D. was admissible and therefore available for the prosecutor to use during

closing argument.

          Finally, appellant suggests that he was harmed by the consolidation because the judge

sentenced him to the maximum of ten years’ imprisonment for each offense. But at least

those sentences must be served concurrently. Had the trial judge severed the two charges,

he could have sentenced appellant to ten years’ imprisonment on each offense to be served




47
     Werner, 2013 WL 824040, at *5. The court of appeals stated,
         One venire member expressed the following reservation:
                I am basing it on the fact that you have two different times that it is done; and
                I say that it was a push-off from the start; and, if it is the first time and I am
                back doing it a second time, then I don’t have any tolerance for it either.
         Another venire member agreed, saying, “I kind of agree with Juror No. 23. Given the
         two stories here and hearing some of these stories, I don’t think that I can be fair.”
48
     Appellant’s Brief at 8.
                                                                            Werner    Page 18

consecutively.49

          In sum, we conclude that the denial of appellant’s severance motion was harmless

error. This case bears greater resemblance to Scott, in which the consolidated charges related

to each other and were based on a common set of facts, than it does to Llamas in which the

evidence of one charge was wholly unrelated to the evidence of the other charge. Therefore,

we conclude that appellant’s substantial rights were not affected by the denial of his

severance motion. We reverse the judgment of the court of appeals, and remand the case to

that court to address appellant’s remaining points of error.

Delivered: October 30, 2013
Publish




49
     TEX . PENAL CODE § 3.04(b).
