                                    NUMBER

                                13-14-00249-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

JUAN VELA,                                                             Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                   On appeal from the 28th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria

      By one issue, appellant Juan Vela challenges his conviction for three counts of

aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2013
3d C.S.). We affirm as modified.

                                       I. BACKGROUND

       Testimony at trial revealed the following facts. In the morning of October 5, 2013,

a man described by witnesses as wearing a blue baseball cap, blue fleece sweater, black

shorts, long socks, tennis shoes, and sunglasses robbed a Dollar General store in Corpus

Christi, Texas by threatening the employees on duty with a knife. Amy Leija, one of the

two employees present, sustained a small cut on her hand during the robbery. Leija

testified that she observed the perpetrator carrying detergent and a lighter. Both Leija

and Lamar Luna, another Dollar General employee, identified appellant in separate photo

lineups. An eyewitness told police that the perpetrator departed in a black Ford Explorer.

       Less than an hour later, a man described by witnesses as wearing a black beanie,

black sunglasses, blue jeans, a long-sleeve blue shirt, latex gloves, and a backpack

robbed the MoneyCenter located inside a Wal-Mart near Greenwood Drive in Corpus

Christi, Texas. Katherine Pina, a crime scene investigator with the Corpus Christi Police

Department, testified that someone had set fire to rolls of toilet paper in one of the store

aisles. Pina testified that there was a “very strong odor of detergent” and a blue liquid on

the floor near the fire. Dianna Torres, an employee of the MoneyCenter present at the

time, was unable to identify appellant in a lineup, but Ramiro Sanchez and Cynthia

Tijerina, two Wal-Mart customers present that day, identified appellant in the courtroom

as the person who robbed the MoneCenter. Jacob Reyna, another Wal-Mart employee,

reported that the perpetrator left in a blue four-door Ford Explorer.

       At 2:25 p.m. on the same day, Corpus Christi police responded to a vehicle

accident involving appellant. Appellant, who was driving a blue Ford Explorer, was



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ticketed for not carrying a driver’s license and failing to control his speed. The next day,

Leija saw a photo posted on Facebook by another person involved in the car accident.

She recognized the person in the photograph, appellant, as the person who robbed the

Dollar General.

       The State charged appellant by indictment with three counts of aggravated

robbery. See id. Appellant announced “ready” on Counts 1 and 2 (which related to the

robbery at the Dollar General) and moved to sever Count 3 (which related to the robbery

at the Wal-Mart). See id. § 3.04 (West, Westlaw through 2013 3d C.S.) (providing that a

defendant “shall have a right to a severance” when two or more offenses are consolidated

under section 3.02). Following a brief argument, the trial judge denied the motion, and

all three charges were tried to a jury. The jury returned a verdict of guilty, found both

enhancement paragraphs to be true, and assessed concurrent sentences of forty-five

years’ imprisonment in the Texas Department of Justice—Institutional Division and a

$1,000 fine on each count. Appellant timely filed a notice of appeal.

                                        II. SEVERANCE

       Appellant argues in his sole issue that the trial court committed harmful error by

denying his motion to sever Count 3 from the other two counts.

       A. Standard of Review and Applicable Law

       Section 3.04 of the penal code allows a defendant to obtain a severance of most

criminal charges that have been consolidated for trial under section 3.02. See TEX. PENAL

CODE ANN. §§ 3.02, 3.04 (West, Westlaw through 2013 3d C.S.). We review the denial

of a motion to sever for abuse of discretion. Werner v. State, 412 S.W.3d 542, 546 (Tex.

Crim. App. 2013). Unless the charges fall into one of the statutory exceptions, none of



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which are relevant here, the defendant’s right to a severance is “absolute” and the trial

judge has no discretion to deny the motion. Id. at 546–47. This rule reflects two concerns:

that the jury will convict a defendant because of his prior or subsequent misdeeds, or that

the jury will infer that because the accused committed other crimes, he probably

committed the charge offense. Id. at 547.

      If the trial court erroneously denied a motion to sever, we review the record for

harm under the Rule 44.2(b) standard for non-constitutional error. Id.; see TEX. R. APP.

P. 44.2(b). Under this standard, appellate courts must disregard the error unless it

affected the appellant’s substantial rights. Werner, 412 S.W.3d at 547. Neither party has

the burden to demonstrate 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.” Id. (citing Schultz v. State, 63 S.W.3d 442, 444–45 (Tex.

Crim. App. 2001)). The Texas Court of Criminal Appeals has explained that the error is

more likely to be harmful when there is little or no overlap of evidence between the

charges, meaning that evidence from one trial would not be admissible in a separate trial

on the severed charges. Id. at 547–48; compare Llamas v. State, 12 S.W.3d 469, 471–

72 (Tex. Crim. App. 2000) (holding, in a prosecution for possession of cocaine and for an

unrelated motor-vehicle charge, that denying a severance was harmful error because a

jury in a separate trial on the motor-vehicle charge would have heard nothing of the drug

evidence, and where several members of the venire panel commented that hearing

evidence of the drug charge would “color” their deliberations on the motor-vehicle charge)

with Scott v. State, 235 S.W.3d 255, 260–61 (Tex. Crim. App. 2007) (holding that denying

a severance of child pornography charges was harmless error because evidence



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supporting the charges for inducing the sexual performance of a child and promoting a

sexual performance by a child would have been admissible in a separate prosecution on

the charges for possession of child pornography). Another relevant factor to take into

consideration is whether the defendant’s trial strategy would have been different if the

severance was granted. See Werner, 412 S.W.3d at 548 n.35; Scott, 235 S.W.3d at 261.

        B. Discussion

        We agree with appellant that the trial court abused its discretion when it

erroneously denied his request for a severance.1 Appellant made a timely request which

apprised the court that he wished to invoke his “absolute right” to a severance, and it was

error for the trial court to deny it. See Werner, 412 S.W.3d at 546.

        Having found error, we begin our harm analysis by assessing the extent that the

evidence supporting the charges overlapped. See id. at 547 (describing the overlap of

evidence as “the most important factor” in this analysis). Appellant asserts that there was

no overlapping evidence: the State called different witnesses for the robbery at the Dollar

General than it did for the one at the Wal-Mart; the knife the Wal-Mart perpetrator used

was not the one used in the Dollar General robbery but was stolen from Wal-Mart the

same day; and eyewitnesses gave differing descriptions of the perpetrator’s clothes and




         1 The State argues that appellant did not properly request a severance because appellant

requested that the trial court sever Count 3 from Counts 1 and 2, and there is no right to severance of only
some of the charges. However, the State does not explain how the language of section 3.04 makes the
right to severance an all-or-nothing proposition and does not provide any case law in support of its
argument. See TEX. PENAL CODE ANN. § 3.04(a) (West, Westlaw through 2013 3d C.S.). We also note that
the Texas Court of Criminal Appeals addressed without comment an appeal from a denied severance
motion that covered only a portion of the charges against the defendant. See Scott v. State, 235 S.W.3d
255, 256–57 (Tex. Crim. App. 2007) (addressing defendant’s appeal of the denial of his motion to sever
three charges for possession of child pornography from six charges for inducing a sexual performance by
a child and promoting a sexual performance by a child and reviewing for harmful error). We will follow the
Texas Court of Criminal Appeals’ lead and address whether denying appellant his requested severance
was harmful error. See id.

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of the vehicles in which they departed both locations. Appellant analogizes his case to

Llamas, where the defendant was tried for two unrelated charges arising out of the same

contact with police. See 12 S.W.3d at 469–70.

        We disagree that Llamas is favorable to appellant. A jury in a separate trial on the

motor-vehicle charge in Llamas “would not have heard the evidence of appellant's

cocaine charge” that was admitted in the consolidated trial. Id. at 472. This case is more

akin to Scott, where the evidence from the original proceedings would still be admissible

in a separate trial if the severance had been granted. See 235 S.W.3d at 260–61.

Evidence of extraneous offenses or bad acts may be admissible for the purpose of

showing identity if that is at issue in the case.2 TEX. R. EVID. 404; see Johnson v. State,

68 S.W.3d 644, 650 (Tex. Crim. App. 2002).                      To be admissible for this purpose,

extraneous-offense evidence “must be so similar to the charged offense as to mark the

offenses as the defendant’s handiwork.” Johnson, 68 S.W.3d at 650–51. Courts take

into account both the specific characteristics of the offenses and the time interval between

them; the required connection between the offenses can be less exact if they occurred

within a “very short period of time.” Id. at 651 & n.25. In this case, both robberies occurred

within little more than an hour of each other. In each, the perpetrator used a knife to

subdue employees of both the stores and threatened them by stating that he had a gun

concealed in his backpack.3 See Dickson v. State, 246 S.W.3d 733, 742–43 (Tex. App.—



        2 Appellant put identity at issue in both cases by pursuing a defensive strategy of attacking the
strength of the witness identifications.

         3 These similarities distinguish appellant’s case from Rojas-Diaz v. State, appellant’s main

authority. No. 05-08-01580-CR, 2010 WL 1532411, at *1 (Tex. App.—Dallas Apr. 19, 2010, no pet.) (mem.
op, not designated for publication). Rojas-Diaz involved an aggravated robbery and a burglary that
occurred two months apart, in different zip codes in the city, at different times of the day, and that involved
different methods of committing the offenses. See id. at *3.

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Houston [14th Dist.] 2007, pet. ref'd) (holding, in trial for aggravated robbery, that

evidence of extraneous robbery was admissible to show identity because both were

committed on the same day in a similar manner:         the perpetrator approached the

complainants as they walked from their apartments and threatened them with a firearm)

(citing Ransom v. State, 503 S.W.2d 810, 813–814 (Tex. Crim. App. 1974)). Furthermore,

the evidence that witnesses at the Dollar General robbery observed appellant carrying a

lighter and detergent, and Pina’s testimony that the Wal-Mart fire smelled of detergent

and that there was blue liquid on the floor nearby, would have been admissible in a

separate trial for the robbery at Wal-Mart to show appellant’s identity as the person who

started the fire. See Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008) (holding

that a unique characteristic common to the charged offense and the extraneous offense

can be admissible to show identity); see also Johnson, 68 S.W.3d at 650. Even though

eyewitnesses observed some differences in the clothing worn by the perpetrators in both

locations, these differences are immaterial. See Dickson, 246 S.W.3d at 743 (observing

that “[s]ome dissimilarities between the charged crime and the extraneous offense do not

automatically make the extraneous offense inadmissible”) (citing Ransom, 503 S.W.2d at

813–14).

      Appellant’s next argument for harm is that because the evidence for the Dollar

General robberies and the evidence for the robbery at Wal-Mart are not overwhelming

when taken alone, the denial of the severance prevented him from having individual juries

consider only the evidence for each offense. As we have already explained, evidence

from the robberies at the Dollar General would have been admissible in a separate trial

for the robbery at Wal-Mart. The prosecutor in a separate trial thus would have been able



                                           7
to mention that evidence and the jury would have been aware of it. Finally, and most

notably, while appellant argues that his defensive strategy “could have changed” if

granted a severance, he does not explain how except to argue that his pre-existing

defensive strategy, calling into question the strength of the witness identifications, could

have been more effective. See Scott, 235 S.W.3d at 261 (holding that Scott’s failure to

show how his defensive strategy would have been different if the severance had been

granted indicated that there was no harm).4

        Appellant next argues that it is relevant that the jury charge stated that appellant

was charged with committing the three offenses on the same day. Appellant did not object

to the jury charge and, as we explained above, the jury in a separate trial for the Wal-Mart

robbery would have been aware of the evidence from the robbery at the Dollar General.

During voir dire, one venireperson stated that his deliberations would be affected by the

fact that appellant was charged with multiple offenses, but that venireperson was not

chosen for the jury and no other member of the panel expressed the same concerns.

        Under the specific facts of this case, with so much overlap in the evidence used to

support the charged offenses, we cannot say that the trial judge’s error in refusing to

sever Count 3 adversely affected appellant’s substantial rights. See Werner, 412 S.W.3d

at 552; Scott, 235 S.W.3d at 261. We accordingly overrule appellant’s sole issue.




        4 Appellant argues that if he had been granted a separate trial on Count 3 his counsel presumably

would have been ready for trial on that count. However, counsel specifically told the court that he was not
ready for trial to preserve the severance issue for appeal, and he did not file a sworn motion for a
continuance. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (holding that a
defendant who does not file a sworn motion for continuance waives error).

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                                       III. MODIFICATION

       The State has brought to our attention an error in the judgment of conviction. The

jury assessed a $1,000 fine as part of the punishment for each offense, but the habitual-

offender statute under which appellant was sentenced does not permit the imposition of

a fine. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2013 3d C.S.).

Article 37.10 of the code of criminal procedures requires appellate courts to reform a

verdict and judgment containing unauthorized punishment. TEX. CODE CRIM. PROC. ANN.

art. 37.10(b) (West, Westlaw through 2013 3d C.S.); see Mizell v. State, 119 S.W.3d 804,

806 (Tex. Crim. App. 2003) (“A trial or appellate court which otherwise has jurisdiction

over a criminal conviction may always notice and correct an illegal sentence.”).

Accordingly, we reform the verdict and modify the judgment of conviction to delete the

unauthorized fines assessed in this case. See Mizell, 119 S.W.3d at 806; see also 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) (using article 37.10 to delete

a fine unauthorized by the enhancement statute).

                                       IV. CONCLUSION

       We affirm the trial court’s judgment as modified in this opinion.



                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of March, 2015.




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