                                                                                                       ACCEPTED
                                                                                                  13-14-00249-CR
                                                                                    THIRTEENTH COURT OF APPEALS
        FILED                                                                             CORPUS CHRISTI, TEXAS
                                                                                              2/2/2015 3:44:01 AM
IN THE 13TH COURT OF APPEALS
                                                                                                 DORIAN RAMIREZ
        CORPUS CHRISTI                                                                                     CLERK

         2/2/2015
                                         NO. 13-14-00249-CR
DORIAN E. RAMIREZ, CLERK
BY JParedes
                                     IN THE COURT OF APPEALS RECEIVED IN
                                                            13th COURT OF APPEALS
                               FOR THE THIRTEENTH DISTRICT OF TEXAS
                                                         CORPUS  CHRISTI/EDINBURG, TEXAS
                                         AT CORPUS CHRISTI   2/2/2015 3:44:01 AM
                                            JUAN VELA,                DORIAN E. RAMIREZ
                                                                           Clerk
                                            APPELLANT,

                                                  VS.

                                      THE STATE OF TEXAS,
                                           APPELLEE.

                         ON APPEAL FROM THE 128TH DISTRICT COURT
                                  NUECES COUNTY, TEXAS
                             TRIAL COURT NUMBER 13-CR-3438-A


                                      BRIEF FOR THE STATE


                                              Adolfo Aguilo, Jr.
                                              State Bar No. 00936750
                                              Assistant District Attorney
                                              105th Judicial District of Texas
                                              901 Leopard, Room 206
                                              Corpus Christi, Texas 78401
                                              (361) 888-0410
                                              (361) 888-0399 (fax)
                                              adolfo.aguilo@co.nueces.tx.us
                                              Attorney for Appellee

                                ORAL ARGUMENT IS NOT REQUESTED
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................... iii

STATEMENT OF FACTS ..............................................................................1

SUMMARY OF THE ARGUMENT ..............................................................9

    1. Reply to Appellant’s Issue:

         A. The trial court did not err in denying Appellant’s motion because
         Appellant was not entitled to a severance of just one of the charged
         offenses.

         B. Appellant’s argument incorrectly treats the offenses alleged in the
         first two counts of the indictment as one offense.

         C. A review of the entire record reveals that Appellant’s substantial
         rights were not affected by the trial court’s denial of his motion.

ARGUMENT ................................................................................................ 10

1. Reply to Appellant’s Issue ........................................................................ 10

  Applicable Law .......................................................................................... 10

  Facts ........................................................................................................... 14

  Discussion .................................................................................................. 15

PRAYER ....................................................................................................... 23

RULE 9.4 CERTIFICATE OF COMPLIANCE .......................................... 24

CERTIFICATE OF SERVICE ..................................................................... 25




                                                         ii
                                  INDEX OF AUTHORITIES
                                          Cases

Blackshear v. State, 385 SW3d 589
(Tex. Crim. App. 2012) ................................................................................ 22

Coleman v. State, 788 SW2d 369
(Tex. Crim. App. 1990) .......................................................................... 11, 15

Couret v. State, 792 SW2d 106
(Tex. Crim. App. 1990) ................................................................................ 21

Devoe v. State, 354 SW3d 457
(Tex. Crim. App. 2011) .......................................................................... 17 n.4

Dickson v. State, 246 SW3d 733
(Tex. App.-Houston [14th Dist.] 2007, pet. ref’d)......................................... 18

Dominguez v. State, 62 SW3d 203
(Tex. App.-El Paso 2000, pet. ref’d) ............................................................ 17

Ex parte Hawkins, 6 SW3d 554
(Tex. Crim. App. 1999) ................................................................................ 16

Ex parte Padron, 16 SW3d 31
(Tex. App.-Houston [1st Dist.] 2000, pet. ref’d) ........................................... 16

Frias v. State, No.03-12-00463-CR, 2014 WL 3410592
(Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op., not designated for
publication) ............................................................................................. 23 n.5

Guia v. State, 723 SW2d 763
(Tex. App.-Dallas 1986, pet. ref’d) .............................................................. 11

Johnson v. State, 68 SW3d 644
(Tex. Crim. App. 2002) ................................................................................ 17

King v. State, 189 SW3d 347
(Tex. App.-Fort Worth 2006, no pet.) .................................................... 13, 14



                                                       iii
Lane v. State, 933 SW2d 504
(Tex. Crim. App. 1996) .......................................................................... 17, 18

Llamas v. State, 12 SW3d 469
(Tex. Crim. App. 2000) .................................................................... 12, 13, 20

Llamas v. State, 991 SW2d 64
(Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (Tex. Crim. App. 2000) .. 20

Lopez v. State, Nos. 03-06-00647-CR, 03-06-00659-CR, 2007 WL 2214615
(Tex. App.-Austin Aug. 1, 2007, pet. ref’d) (mem. op., not designated for
publication) ................................................................................................... 14

Mock v. State, 848 SW2d 215
(Tex. App.-El Paso 1992, pet. ref’d) ................................................ 10, 11, 15

Nelson v. State, 864 SW2d 496
(Tex. Crim. App. 1993) .................................................................... 10, 11, 15

Peña v. State, 867 SW2d 97
(Tex. App.-Corpus Christi 1993, pet. ref’d) ................................................. 19

Ramirez v. State, No. 04-09-00323-CR, 2010 WL 480495
(Tex. App.-San Antonio Nov. 10, 2010, pet. ref’d) (mem. op., not designated
for publication)........................................................................................ 23 n.5

Ransom v. State, 503 SW2d 810
(Tex. Crim. App. 1974) .......................................................................... 18, 19

Rodriguez v. State, 90 SW3d 340
(Tex. App.-El Paso 2001, pet. ref’d) ............................................................ 17

Scott v. State, 235 SW3d 255
(Tex. Crim. App. 2007) .................................................................... 12 n.3, 22

Segundo v. State, 270 SW3d 79
(Tex. Crim. App. 2008) .......................................................................... 17, 19

Silva v. State, 831 SW2d 819
(Tex. App.-Corpus Christi 1992, no pet.) ..................................................... 12

                                                        iv
Thornton v. State, 986 SW2d 615
(Tex. Crim. App. 1999) ............................................................................... 12

Tovar v. State, 165 SW3d 785
(Tex. App.-San Antonio 2005, no pet.) ........................................................ 16

Trevino v. State, 228 SW3d 729
(Tex. App.-Corpus Christi 2006, pet. ref’d) ........................................... 13, 16

Werner v. State, 412 SW3d 542
(Tex. Crim. App. 2013) .................................................. 10, 11, 13, 21, 22, 23

                                        Statutes and Rules

Tex. Code Crim. Proc. art. 21.24(a) ....................................................... 10 n.1

Tex. Code Crim. Proc. art. 37.10(b) ....................................................... 23 n.5

Tex. Penal Code § 3.01(1), (2) ..................................................................... 10

Tex. Penal Code § 3.02 ........................................................................... 10, 11

Tex. Penal Code § 3.02(a) ............................................................................ 10

Tex. Penal Code § 3.02(b) ...................................................................... 11 n.1

Tex. Penal Code § 3.03(a) ............................................................................ 23

Tex. Penal Code § 3.04(a) .......................................................... 11, 12, 13, 22

Tex. Penal Code § 3.04(c) ...................................................................... 11 n.2

Tex. Penal Code § 12.42(d) ................................................................ 1, 23 n.5

Tex. Penal Code § 29.03(a)(2) .........................................................................1

Tex. R. App. P. 38.1(i) .................................................................................. 15

Tex. R. App. P. 43.2(b) ........................................................................... 23 n.5

                                                     v
Tex. R. App. P. 44.2(b) ................................................................................. 13

                                                   Treatises

43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal
Practice and Procedure § 38.1 (3d ed. 2011) .............................................. 11

43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal
Practice and Procedure § 38.44 (3d ed. 2011) ............................................ 11

6 Michael B. Charlton, Texas Practice: Texas Criminal Law § 3.4 (2d ed.
2001) ............................................................................................................. 15




                                                         vi
                            No.13-14-00249-CR

                        JUAN VELA, Appellant,
                                VS.
                   THE STATE OF TEXAS, Appellee.
                    ****************************
                     IN THE COURT OF APPEALS
                              FOR THE
                  THIRTEENTH DISTRICT OF TEXAS

                BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:

      Appellant was charged by indictment with three counts of aggravated

robbery. C.R. at 5-6. See Tex. Penal Code § 29.03(a)(2). A jury found him

guilty of each offense. C.R. at 74-76. After the jury found that Appellant was

a habitual felony offender, see Tex. Penal Code § 12.42(d), it assessed his

punishment at imprisonment for 45 years and a fine of $1000 for each

offense. C.R. at 85-89. Appellant’s only issue on appeal contends that the

trial court erred in denying his severance motion.

                             Statement of Facts

      The first count of the indictment alleged that Appellant, on or about

October 5, 2013 in Nueces County, Texas, did then and there, while in the

course of committing theft of property and with intent to obtain or maintain

control of said property, intentionally or knowingly threaten or place Lamar

Luna in fear of imminent bodily injury or death, and Appellant did then and

there use or exhibit a deadly weapon, to wit: a knife, which in the manner of
its use or intended use was capable of causing serious bodily injury or death.

C.R. at 5.

      The second count of the indictment alleged that Appellant, on or about

October 5, 2013 in Nueces County, Texas, did then and there, while in the

course of committing theft of property and with intent to obtain or maintain

control of said property, intentionally, knowingly or recklessly cause bodily

injury to Amy Leija by cutting her with a knife, and Appellant did then and

there use or exhibit a deadly weapon, to wit: a knife, which in the manner of

its use or intended use was capable of causing serious bodily injury or death.

C.R. at 6.

      The third count of the indictment alleged that Appellant, on or about

October 5, 2013 in Nueces County, Texas, did then and there, while in the

course of committing theft of property and with intent to obtain or maintain

control of said property, intentionally or knowingly threaten or place

Damiana Torres in fear of imminent bodily injury or death, and Appellant

did then and there use or exhibit a deadly weapon, to wit: a knife, which in

the manner of its use or intended use was capable of causing serious bodily

injury or death. C.R. at 6.

      On October 5, 2013, Lamar Luna and Amy Leija were employed at

the Dollar General on Morgan Street in Corpus Christi, Texas. 3 R.R. at 6 &



                                      2
61. Leija was an assistant manager and Luna was a cashier. 3 R.R. at 7-8.

When Luna came to work at 11:00 a.m., she went to the back office to count

the money in her register. After a while, Leija also went to the office to get a

key from Luna. 3 R.R. at 9. She saw Luna on the floor bound with duct tape.

Leija screamed and Appellant pushed her into the office before she could get

help. When he pushed her into the office, Leija’s finger was cut by the

kitchen knife Appellant was holding. 3 R.R. at 10 & 34. After Appellant

asked her for it, she gave him the money from the safe near the registers. He

took Luna’s register, the register from the safe, and the change fund.

Altogether, he stole about $750.

      When Appellant and Leija returned to the office, he emptied a box

and put a register and the change in it. He then walked out of the store with

the box. 3 R.R. at 11-12. Before Appellant left, he told Leija to wait ten

minutes before she called the police; if not, he had a gun. 3 R.R. at 25. After

he left, Leija called the police and unbound Luna. 3 R.R. at 12. While

Appellant was dealing with Leija, he also told her “[t]o calm down, that he

just wanted the money from the safe.” 3 R.R. at 18.

      SX-1, a surveillance video from the store, was introduced into

evidence without objection. 3 R.R. at 14. While viewing the video, Leija

explained that prior to the robbery, Appellant walked down the aisles that



                                       3
contained knives. Also, Appellant is observed walking around the store

holding some detergent and a lighter. The lighter was later found by the hair

products. 3 R.R. at 19. Some detergent had been spilled near the entrance of

the back room. 3 R.R. at 20.

      Besides the knife he was holding, Appellant was wearing a cap, a

fleece sweater, baggy shorts, sunglasses, and gloves. 3 R.R. at 10 & 20. She

described Appellant’s vehicle which was seen on the video as being black. 3

R.R. at 21. On October 8, 2013, Leija was able to identify Appellant from a

photo lineup. SX-2 & 9; 3 R.R. at 14-15 & 21. When she first saw

Appellant’s photo, she knew it was him. 3 R.R. at 43. Before she went to the

lineup, she had seen a photo of Appellant posted on Facebook after he

robbed a Wal-Mart on October 5, 2013. SX-10; 3 R.R. at 27 & 34-35. She

also saw a photo posted by a lady after she was involved in a vehicle

collision with Appellant that same day. 3 R.R. at 36-37. Appellant was

wearing different clothing during the Wal-Mart robbery. 3 R.R. at 28.

      Luna testified that when she arrived to work on the morning of

October 5, 2013, she got her till and took it to the back office to count her

money. When she finished counting her money, she turned around toward

the door. Appellant then “popped up” in front of her with a knife to her face.

When Luna told Appellant that she just had $100, he tied her hands and



                                      4
covered her mouth with duct tape and told her to sit on the floor. 3 R.R. at

63.

      When Leija came to the office, Appellant also threatened her with the

knife. Leija then took him to the front of the store where the safe was. When

they returned to the office, Appellant emptied a box and put the tills inside

the box. Before he left through the front door, Appellant told them not to do

anything because he had a gun. 3 R.R. at 64-65 & 68. Despite the

circumstances, Luna described Appellant as having a “calm demeanor.” 3

R.R. at 66.

      On October 8, 2013, Luna had no problem identifying Appellant in a

photo lineup. SX-52; 3 R.R. at 70. She had not seen any other photos of

Appellant prior to the lineup. 3 R.R. at 72. She submitted her two-weeks’

notice a few days after the robbery. 3 R.R. at 77.

      Damiana Torres, an employee of the Wal-Mart on Greenwood, was

working in the MoneyCenter of the store around noon on October 5, 2013.

While she was helping a customer, she heard other customers say, “There’s

a fire, there’s a fire.” 3 R.R. at 136. She then noticed Appellant approaching

the MoneyCenter. Appellant looked suspicious because he was wearing

sunglasses and gloves. 3 R.R. at 136. When Torres finished with her

customer, Appellant was right next to her holding a knife. 3 R.R. at 136-137.



                                       5
When Appellant asked her for the money, she explained that a manager had

to press a button to open her register. At that time, all of the managers were

preoccupied with the fire. Appellant kept telling her to hurry up and be calm.

Appellant finally pulled the money box out from under the register and

walked away with the box. 3 R.R. at 137-138. As he was walking away,

Appellant said, “Stay down, stay down. I have a gun in my backpack.” He

then exited through the grocery side doors. 3 R.R. at 138. Despite the

circumstances, Torres described Appellant as being “real calm.” 3 R.R. at

142.

       SX-54, a surveillance video from the store, was introduced into

evidence. 3 R.R. at 139. Torres was unable to identify Appellant when she

was shown a photo lineup. 3 R.R. at 145. She was not asked if she could

identify Appellant in the courtroom.

       Ramiro Sanchez was at the Wal-Mart with his girlfriend on October 5,

2013. While he was walking down an aisle, he saw Appellant wearing a

black beanie, a black shirt, black glasses, blue jeans, latex gloves, and a

backpack. Sanchez then talked to a store employee about what he had just

seen. 3 R.R. at 93.

       When Sanchez and his girlfriend approached the registers, people

were yelling, “Fire, fire.” Sanchez then looked towards the MoneyCenter



                                       6
and saw Appellant walking out of the MoneyCenter and exiting the store

with a big wooden box. The employee in the MoneyCenter was crying and

yelling, “I got robbed. I got robbed.” 3 R.R. at 94. When he exited the store,

Appellant was “walking calm, kind of just like trying to fit right in.” 3 R.R.

at 96. Sanchez believed Appellant had set the fire to facilitate the robbery. 3

R.R. at 95. A store employee told him Appellant left in a “blue . . . Ford

Explorer or something.” 3 R.R. at 97.

      Though he was not shown a photo lineup, 3 R.R. at 97, Sanchez was

able to identify Appellant in the courtroom. 3 R.R. at 96. He had previously

seen a photo of Appellant on Facebook. 3 R.R. at 95.

      Cynthia Tijerina was with Sanchez on the day of the robbery. When

she first saw Appellant, he was walking towards the back of the Wal-Mart

wearing a beanie, sunglasses, a black shirt, pants, gloves, and a backpack.

When they heard someone yell, “Fire,” she and Sanchez walked to the front

entrance. At that time, she observed Appellant exiting the MoneyCenter with

a wooden box. 3 R.R. at 108. Tijerina was able to identify Appellant in the

courtroom. 3 R.R. at 109. Though she had not been asked to identify

Appellant in a lineup, she had previously seen pictures of Appellant while

watching the news on TV. 3 R.R. at 110.




                                        7
      On October 5, 2013, Nick Narvaez, a Corpus Christi police officer,

was summoned to an accident in the 2300 block of Saratoga Boulevard

involving a black Ford Explorer and a black Ford pickup truck. Appellant

was the driver of the black Ford Explorer. 4 R.R. at 5-6 & 8. He was issued

citations for not having a driver license and failing to control his speed. The

collision occurred at 2:25 p.m. 4 R.R. at 7.

      The State also introduced a surveillance video from the Dollar

General at the intersection of Staples and Park. The video depicts Appellant

in the store on October 5, 2013 at 9:19 a.m. SX-55; 3 R.R. at 147-149.

      Katherine Pina, a crime scene investigator with the Corpus Christi

Police Department, took photos of the scene at the Dollar General on

Morgan Street. 3 R.R. at 48-49. Duct tape was sold at the store. 3 R.R. at 51-

52. Pina also went to the Wal-Mart at around 1:00 p.m. Firefighters were

trying to clear out the smoke from the fire. 3 R.R. at 55. Appellant’s knife

was found in the MoneyCenter area of the store on the floor mat next to the

register. 3 R.R. at 56. Because Appellant wore gloves, she was unable to

obtain any latent fingerprints. 3 R.R. at 57. The fire was started in the area of

the store where toilet paper and paper towels may be found. Some toilet

paper had been set on fire. There was a “very strong odor of detergent” and a

light blue liquid on the floor. 3 R.R. at 58-59.



                                        8
      Officer Amado Garcia responded to the aggravated robbery call at the

Dollar General. When Garcia arrived at the store, a male witness told him

that he had seen Appellant get into a black 2000 model Ford Explorer. 3

R.R. at 87.

      Officer Ralph Torres was dispatched to the Wal-Mart on Greenwood.

3 R.R. at 120. A store employee, Joe Ibarra, told Torres that “he possibly

saw a second suspect.” 3 R.R. at 123.

      Officer Luis Flores spoke with Jacob Reyna, a cart attendant at Wal-

Mart, who told him that he saw Appellant walking towards a blue 4-door

Ford Explorer. 3 R.R. at 129. Flores also saw a kitchen knife on the floor in

the financial center. 3 R.R. at 130-131. It was determined that Appellant had

taken the knife from the kitchen area section of the store. Flores found the

empty package that had contained the knife. 3 R.R. at 132.

      Additional facts necessary for a resolution of Appellant’s issue will be

recited in the reply to said issue.

                          Summary of the Argument

   1. Reply to Appellant’s Issue:

      A. The trial court did not err in denying Appellant’s motion because
      Appellant was not entitled to a severance of just one of the charged
      offenses.

      B. Appellant’s argument incorrectly treats the offenses alleged in the
      first two counts of the indictment as one offense.

                                        9
       C. A review of the entire record reveals that Appellant’s substantial
       rights were not affected by the trial court’s denial of his motion.

                                     Argument

    1. Reply to Appellant’s Issue:

       In his only issue, Appellant contends that the trial court erred in

denying his severance motion. Appellant’s Brief at 2.

                               Applicable Law

       “A defendant may be prosecuted in a single criminal action for all

offenses arising out of the same criminal episode.” Tex. Penal Code §

3.02(a). Offenses arise out of the same 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.’” Werner v. State, 412 SW3d 542, 546 (Tex. Crim. App. 2013)

(quoting Tex. Penal Code § 3.01(1), (2)). Prosecuting connected or related

charges in a single criminal action promotes judicial economy. Id.

       The decision to consolidate or join cases pursuant to § 3.02 belongs to

the State. See Nelson v. State, 864 SW2d 496, 498 (Tex. Crim. App. 1993);

Mock v. State, 848 SW2d 215, 219 (Tex. App.-El Paso 1992, pet. ref’d).1 “A


1
 “Joinder” occurs when multiple offenses are alleged in the same charging
instrument. Tex. Code Crim. Proc. art. 21.24(a). “Consolidation” occurs

                                      10
defendant does not have a right to consolidate offenses committed in the

same criminal episode.” Nelson, 864 SW2d at 498 (emphasis in original);

see also Mock, 848 SW2d at 218. Additionally, “the decision to consolidate

prosecutions is not within the discretion of the trial court.” Guia v. State, 723

SW2d 763, 768 (Tex. App.-Dallas 1986, pet. ref’d).

      “Whenever 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 § 3.04(a). This section “grants defendants an

absolute right to sever most charges that have been consolidated under

Section 3.02.” Werner, 412 SW3d at 546.2

      “‘Severance’ occurs when joined or consolidated charges are ‘split

apart’ so that each charge can be tried separately.” 43 George E. Dix & John

M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 38.1 at

p. 389 (3d ed. 2011); see also id. at § 38.44 (“[T]he substance of the demand

must make it clear that the defendant is objecting to joint trial of joined or

consolidated charges. . . . A demand for severance states merely that the

defendant wishes to be tried for only one offense in a single trial . . . .”);

Coleman v. State, 788 SW2d 369, 373 (Tex. Crim. App. 1990) (proper

when offenses alleged in separate charging instruments are tried at the same
time. Tex. Penal Code § 3.02(b).
2
  § 3.04(c) provides that the absolute right to a severance is not applicable to
certain offenses. Aggravated robbery is not one of those offenses.

                                       11
severance motion must apprise trial court that it is “a motion to sever

properly joined . . . offenses for separate trials”); Silva v. State, 831 SW2d

819, 823 (Tex. App.-Corpus Christi 1992, no pet.) (“The appellant may

timely request a severance so that he is tried for each count in a separate

trial.”).3

        The right to a mandatory severance under § 3.04(a) addresses two

legitimate concerns:

             (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.

Llamas v. State, 12 SW3d 469, 471-472 (Tex. Crim. App. 2000). Thus, “[t]he

primary reason for a defendant to sever offenses is to limit the presentation of

evidence of the defendant’s wrongdoing to one offense, rather than allowing

presentation of evidence of multiple offenses.” Thornton v. State, 986 SW2d

615, 617 (Tex. Crim. App. 1999). However, the granting of a severance does

not preclude the admission of extraneous offenses pursuant to Rule 404(b) of



3
  When offenses that are subject to mandatory severance are joined or
consolidated with offenses that are not subject to mandatory severance, a
defendant may seek severance of those offenses that are subject to
mandatory severance. See Scott v. State, 235 SW3d 255, 258 (Tex. Crim.
App. 2007).

                                      12
the Texas Rules of Evidence. Werner, 412 SW3d at 549; King v. State, 189

SW3d 347, 354 (Tex. App.-Fort Worth 2006, no pet.).

       If a trial judge erroneously denies a severance motion, the error must be

reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure.

Llamas, 12 SW3d at 470. “In order to properly conduct a harm analysis under

Rule 44.2(b), an appellate court need only determine whether or not the error

affected a substantial right of the defendant. To make this determination,

appellate courts must decide whether the error had a substantial or injurious

effect on the jury verdict.” Id. at 471 n.2. Harm must be assessed “after

reviewing the entirety of the record, including the evidence, jury charge,

closing arguments, voir dire, and any other relevant information.” Werner, 412

SW3d at 547.

       Considering the two concerns addressed by § 3.04(a), courts have

generally found the denial of a severance harmless if the evidence of one

offense would have been admissible in the separate prosecution of the other

offense. E.g., Werner, 412 SW3d at 549 (focusing “on whether evidence was

admissible in the separate cases”); Trevino v. State, 228 SW3d 729, 733 (Tex.

App.-Corpus Christi 2006, pet. ref’d) (no reversible error in failing to sever

murder and aggravated assault offenses because the jury would have heard the

same evidence as same transaction contextual evidence in separate trials);



                                      13
King, 189 SW3d at 354 (listing cases); Lopez v. State, Nos. 03-06-00647-CR,

03-06-00659-CR, 2007 WL 2214615, at *3 (Tex. App.-Austin Aug. 1, 2007,

pet. ref’d) (mem. op., not designated for publication) (severance error did not

affect appellant’s substantial rights because, had the offenses been tried

separately, it was probable that evidence from each offense would have been

admissible in both trials to refute defensive theories).

                                      Facts

       During docket call on March 27, 2014, Appellant urged his motion to

sever offenses that had been filed the same day. C.R. at 59; Supp. 2 R.R. at 3-

4. Appellant stated, “Your Honor, we are asking on this cause number to sever

Count 3 from Counts 1 and 2. Counts 1 and 2 both involve a robbery at the

same location, whereas Count 3 involves an alleged robbery at another location

on the same date. And we would like to try the 1 and 2 together, and then try 3

separately.” The trial court denied the motion. C.R. at 107; Supp. 2 R.R. at 4.

       Before voir dire began on March 31, 2014, Appellant stated, “Your

Honor, we are ready on Counts 1 and 2, but we’re going to announce not ready

on Count 3 based upon our motion for severance. I understand the Court is

probably going to make us go forward on all 3 counts.” 2 R.R. at 4. Appellant

explained that he did not announce ready on Count 3 because he did not want




                                        14
to forfeit any appellate issues regarding his severance request. 2 R.R. at 5. The

trial court again denied his request. C.R. at 107; 2 R.R. at 6.

                                    Discussion

       As in Coleman, the threshold issue in this case is the nature of

Appellant’s motion. 788 SW2d at 371. Appellant requested that the offense

alleged in Count 3 be severed from the offenses alleged in Counts 1 and 2.

Supp. 2 R.R. at 3-4. He now contends the trial court erred in denying his

motion because it resulted “in a joint trial for two separate robberies.” He seeks

“two new trials – one for Counts One and Two related to Dollar General and

the other for Count Three related to Wal-Mart.” Appellant’s Brief at 6.

Appellant does not provide the Court with any authority in support of his

contention that he was entitled to a severance of one of the counts from the

other two counts. Likewise, he also fails to provide the Court with any

authority in support of his request for two new trials. See Tex. R. App. P.

38.1(i). Appellant is essentially attempting to usurp the State’s right to join or

consolidate offenses. See Nelson, 864 SW2d at 498; Mock, 848 SW2d at 219.

“Severance of the joined offenses is the only portion of the consolidation

process over which the defendant has any control.” 6 Michael B. Charlton,

Texas Practice: Texas Criminal Law § 3.4 at p.36 (2d ed. 2001).




                                        15
       Additionally, Appellant attempts to show that he was harmed by the

denial of his motion by incorrectly treating the offenses alleged in the first two

counts of the indictment as one offense. Appellant’s Brief at 6, 7, 9, 15, 18, 20,

21, & 22. The allowable unit of prosecution for robbery is each victim. Ex

parte Hawkins, 6 SW3d 554, 560 (Tex. Crim. App. 1999) (“Prosecuting the

applicant twice for robbery did not violate the Double Jeopardy Clause of the

Fifth Amendment because the allowable unit of prosecution for robbery is each

victim, and he assaulted two victims in the course of committing theft.”); Ex

parte Padron, 16 SW3d 31, 35 (Tex. App.-Houston [1st Dist.] 2000, pet. ref’d).

Thus, the State properly charged Appellant with two offenses for his conduct at

the Dollar General.

       If Appellant had requested a proper severance of all the charges,

evidence of both of the offenses alleged in Counts 1 and 2 would have been

admissible as same transaction contextual evidence in the separate trial of each

offense. “Same transaction contextual evidence results when an extraneous

matter is so intertwined with the State’s proof of the charged crime that

avoiding reference to it would make the State’s case incomplete or difficult to

understand.” Trevino, 228 SW3d 733; see also Tovar v. State, 165 SW3d 785,

795 (Tex. App.-San Antonio 2005, no pet.) (no reversible error in failing to

sever charges of producing sexual performance by a child and possession of



                                       16
child pornography); Rodriguez v. State, 90 SW3d 340, 358 (Tex. App.-El Paso

2001, pet. ref’d) (no reversible error in failing to sever two counts of engaging

in organized criminal activity); Dominguez v. State, 62 SW3d 203, 208 (Tex.

App.-El Paso 2000, pet. ref’d) (no reversible error in failing to sever

possession of controlled substance and failure to stop and render aid charges).4

       Moreover, as Appellant notes in his brief, his defense consisted of

challenging the State’s witnesses regarding their ability to identify him as the

perpetrator. Appellant’s Brief at 21. “One of the main rationales for admitting

extraneous-offense evidence is to prove the identity of the offender.” Segundo

v. State, 270 SW3d 79, 88 (Tex. Crim. App. 2008). “To be admissible to show

identity, an extraneous offense must be so similar to the offense charged that

the offenses are marked as the accused’s handiwork.” Lane v. State, 933 SW2d

504, 519 (Tex. Crim. App. 1996). “[S]ufficient similarity may be shown by

proximity in time and place or by a common mode of committing the

offenses.” Id. (emphasis in original). “The exactness [in similarity] that might

be required of an offense committed at a more remote period of time might not

necessarily be required for an offense committed within a very short period of

time.” Johnson v. State, 68 SW3d 644, 651 (Tex. Crim. App. 2002) (“The


4
  A limiting instruction is not required when evidence is admitted as same
transaction contextual evidence. Devoe v. State, 354 SW3d 457, 471 (Tex.
Crim. App. 2011).

                                       17
extraneous offenses were highly probative because they placed the primary

offense in context of the scheme carried out that night and because they tended

to prove appellant’s identity as the perpetrator.”). The fact that a defendant

might have changed his clothing or appearance is not controlling. Ransom v.

State, 503 SW2d 810, 813-814 (Tex. Crim. App. 1974). “Some dissimilarities

between the charged crime and the extraneous offense do not automatically

make the extraneous offense inadmissible.” Dickson v. State, 246 SW3d 733,

743 (Tex. App.-Houston [14th Dist.] 2007, pet. ref’d) (evidence of extraneous

aggravated robbery admitted to prove identity in aggravated robbery trial).

       In Ransom, the appellant was convicted of robbery. Id. at 811. On

appeal, he complained about the admission of an extraneous offense, another

robbery, during the guilt-innocence phase of the trial. Id. The Court held that

the extraneous offense was admissible to prove identity because “both offenses

were robberies committed at gunpoint in Dallas three days apart, while

appellant, identified as the perpetrator of both, was aided by a confederate.” Id.

at 813; see also Lane, 933 SW2d at 519 (discussing Ransom).

       In the instant case, the similarity of all three offenses is shown by

proximity in time and place and by a common mode of committing the

offenses. All three offenses occurred within about an hour of each other. All

three offenses occurred in Corpus Christi. In all three offenses, Appellant



                                       18
accosted a female employee of a retail store with a kitchen knife. In all three

offenses, Appellant told the victims he had a gun that he did not display. In all

three offenses, Appellant left the store with a till or money box. In all three

offenses, Appellant wore sunglasses and gloves. In all three offenses,

Appellant was described as being calm. Thus, there are more similarities

between the offenses in this case than those in Ransom.

       Additionally, even Appellant acknowledges that “[t]he detergent/fabric

softener and lighter/fire link between the two scenes certainly indicate a

relationship between the two scenes . . . .” Appellant’s Brief at 17. “This is ‘the

mark of Zorro’ mode of proving identity; it is a remarkably unusual fact, in

which a single detail suffices to establish identity.” Segundo, 270 SW3d at 88

(appellant’s DNA found in both murder victims constituted his “calling card”);

accord Peña v. State, 867 SW2d 97, 99 (Tex. App.-Corpus Christi 1993, pet.

ref’d) (holding that repeated use of same vehicle in different burglaries

constituted a “signature” characteristic). The use of detergent as a criminal

instrument certainly seems to qualify as a remarkably unusual fact that

constitutes a “signature” characteristic. As Appellant notes in his brief, “[t]he

sheer existence of two similar crimes on the same day lessened the strength of

the defense.” Appellant’s Brief at 21.




                                         19
       Appellant’s contention that this case “closely resembles” Llamas does

not withstand scrutiny. Appellant’s Brief at 16. In Llamas, the appellant was

detained and arrested after he was observed driving a pickup truck with

obliterated identification numbers. Officers then inventoried the truck and

discovered an envelope containing cocaine. Llamas v. State, 991 SW2d 64, 66

(Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (2000). The appellant was

subsequently indicted for tampering with identification numbers and

possession of cocaine by two separate indictments. On appeal, he contended

that the trial court erred in consolidating the two charges for trial over his

objection. Id. The Amarillo Court of Appeals and the Court of Criminal

Appeals agreed. In upholding the judgment of the court of appeals, the Court

of Criminal Appeals said, “Clearly, evidence as to the cocaine charge was

admitted in this trial that would otherwise not be relevant to the possession of

altered identification numbers and vice versa.” 12 SW3d at 472.

       The Court of Criminal Appeals long ago explained why the cocaine

possession charge should not have been prosecuted with the altered

identification numbers charge:

             A . . . rule that has often been stated by this Court
             is that the State is entitled to show the
             circumstances surrounding an arrest. However,
             this rule is restricted by the same test as any
             extraneous matter, that is, the evidence must be
             relevant to a material issue in the case and the

                                      20
              probative value must outweigh the prejudicial
              value. Therefore, to simply state that something is
              admissible merely because it is a circumstance of
              the arrest is too broad a statement.

Couret v. State, 792 SW2d 106, 107 (Tex. Crim. App. 1990) (emphasis in

original and citations omitted). In Couret, a hypodermic needle was found in

the appellant’s possession at the time he was arrested for a burglary. Id. The

Court held that the trial court erred in admitting evidence of the hypodermic

needle at the appellant’s burglary trial. Id. at 108.

       Appellant’s other arguments are equally unconvincing.

       Though Appellant notes that one of the voir dire panel members

appeared to have trouble with the fact that Appellant was charged with

multiple offenses, Appellant’s Brief at 17-18; 2 R.R. at 124-125, that panel

member did not serve on the jury. 2 R.R. at 169 & 178-179. She was also the

only one of the eighty panel members who expressed any such reservation.

And even if the offenses had been severed, the jury would have been permitted

to consider evidence of the other two offenses when deliberating on one

offense. See Werner, 412 SW3d at 551.

       Though Appellant also complains that one small portion of the jury

charge may “have impressed upon the jury that the evidence of each crime

overlapped where the actual evidence itself may not have,” Appellant’s Brief at

18, Appellant did not object to the charge. Furthermore, when viewed in its

                                         21
entirety, the charge made it clear that Appellant was charged with three

separate offenses that required three separate verdicts. C.R. at 65-76. And as

noted above, the evidence of the three crimes did overlap.

       Appellant also complains about the prosecutor’s argument “linking the

two crimes in order to emphasize proof beyond a reasonable doubt.”

Appellant’s Brief at 20. As noted above, there were several links between the

three crimes. See Werner, 412 SW3d at 551.

       Though Appellant also contends that his strategy could have changed if

a severance had been granted, Appellant’s Brief at 22, he does not state what

other viable defense would have been available to him had a severance been

granted. See Werner, 412 SW3d at 548 n.35; Scott, 235 SW3d at 261.

       Finally, Appellant notes that his trial counsel announced that he was not

ready on Count 3. Appellant’s Brief at 22. But his trial counsel explained that

he was announcing not ready to avoid forfeiting any appellate issues regarding

his severance motion. 2 R.R. at 4-5. A defendant is not entitled to a severance

if he is not ready for trial. See Tex. Penal Code § 3.04(a). Because Appellant

never requested a continuance, he never filed a sworn motion for continuance.

Consequently, the issue is moot. See Blackshear v. State, 385 SW3d 589, 591

(Tex. Crim. App. 2012).




                                      22
`      Appellant also fails to note that his sentences will be served

concurrently because of the joinder of the offenses. See Tex. Penal Code §

3.03(a); Werner, 412 SW3d at 551-552.

       In conclusion, Appellant was not entitled to a severance of just one of

the offenses alleged in the indictment. Moreover, a review of the entire record

reveals that Appellant’s substantial rights were not affected by the denial of his

motion.

       Accordingly, Appellant’s issue should be overruled.

                                    Prayer

       For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.5




5
 As noted above, after finding that Appellant was a habitual felony offender,
the jury assessed his punishment at imprisonment for 45 years and a fine of
$1,000 for each offense. C.R. at 85-89. The judgment reflects the imposition
of the fines. C. R. at 95. Section 12.42(d) of the Penal Code does not
authorize the imposition of a fine. The Court may modify the trial court’s
judgment by deleting the fine for each conviction. Tex. Code Crim. Proc. art.
37.10(b); Tex. R. App. P. 43.2(b); Frias v. State, No. 03-12-00463-CR, 2014
WL 3410592, at *10 (Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op.,
not designated for publication) (deleting fine assessed against habitual
felony offender); Ramirez v. State, No. 04-09-00323-CR, 2010 WL
4840495, at *2 (Tex. App.-San Antonio Nov. 24, 2010, pet. ref’d) (mem.
op., not designated for publication) (same).

                                       23
                                  Respectfully submitted,



                                  /s/ Adolfo Aguilo, Jr.
                                  Adolfo Aguilo, Jr.
                                  State Bar No. 00936750
                                  Assistant District Attorney
                                  105th Judicial District of Texas
                                  901 Leopard, Room 206
                                  Corpus Christi, Texas 78401
                                  (361) 888-0410
                                  (361) 888-0399 (fax)
                                  adolfo.aguilo@co.nueces.tx.us



                       Rule 9.4 Certificate of Compliance

       In compliance with Texas Rule of Appellate Procedure 9.4(i), I certify

that the number of words in this brief, including those matters listed in Rule

9.4(i)(1), is 6,363.

                                  /s/ Adolfo Aguilo, Jr.
                                  Adolfo Aguilo, Jr.




                                       24
                         Certificate of Service

     This is to certify that this brief was emailed to Appellant’s counsel,

Danice L. Obregon (danice@obregonlaw.com), on February 2, 2015.


                              /s/ Adolfo Aguilo, Jr.
                              Adolfo Aguilo, Jr.




                                   25
