      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00516-CR



                                 Russell J. Alligood, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 59544, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Russell J. Alligood appeals from his conviction for capital murder. See Tex. Penal

Code Ann. § 19.03(a)(2) (West Supp. 2006). After the jury found him guilty, sentence was

automatically imposed at life imprisonment in the Texas Department of Criminal Justice-

Institutional Division. See id.; Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West 2006). In one

issue on appeal, appellant contends that the trial court abused its discretion in denying his motion

to sever his trial from that of a codefendant.1 We affirm the trial court’s judgment.




  1
     Codefendant Brandon Hammock also filed a motion to sever, which was denied. Hammock’s
appeal is before us as cause number 03-06-00523-CR, also decided this day. Hammock v. State,
No. 03-05-00523-CR (Tex. App.—Austin July 11, 2007, no pet. h.) (mem. op., not designated for
publication). Another companion case involving codefendant Erik Siperko is pending in the
Thirteenth Court of Appeals. Appellant moved to sever his case only from that of Hammock; at the
hearing on the motion for severance, appellant’s counsel stated that they “had no difficulty being
tried with Siperko.”
                                            Background

               In June 2005, Captain John Thresher went to check on his friend Captain Jason

Gonzalez, who had not reported for work at Fort Hood that day. When Thresher arrived at

Gonzalez’s house in Harker Heights, he noticed that Gonzalez’s pickup was gone. He looked

through the glass front-door window and could see a back door standing open. When he got to the

back door, he noticed muddy footprints leading into the house. He went into the house, discovered

Gonzalez’s dead body in the kitchen, and saw a bullet hole shot through the window. The cause of

death was later determined to be four small-caliber bullet wounds to the head. Four .22-caliber shell

casings were recovered from the crime scene. Among the items missing from the house were

Gonzalez’s military identification that had his social security number printed on it, various electronic

equipment, tools, the pickup, and a flight helmet with Gonzalez’s name on it.

               Two of the perpetrators, Eric Siperko and appellant, were identified through video

surveillance tapes in a convenience store in Killeen as they attempted to use Gonzalez’s

identification to cash stolen checks. Eventually, the other two perpetrators, Brandon Hammock and

Matthew Harris, were identified. Each of the four gave written statements admitting participation

in the crime. Investigators learned that appellant had purchased the gun, which was later discovered

under the mattress in Hammock’s bedroom.2 In the shed outside Hammock’s home, the officers

found Gonzalez’s tools and flight helmet. Hammock’s fingerprint was found on the flight helmet

and appellant’s fingerprint was found inside a box of .22 ammunition found in Hammock’s home.




  2
   Hammock was a juvenile later certified for trial as an adult. See Tex. Fam. Code Ann. § 54.02
(West 2002). Hammock’s father consented to the search.

                                                   2
Ballistics testing confirmed that the shell casings found at the crime scene had been fired by the gun

recovered from Hammock’s home.

               Appellant, Siperko, and Hammock were tried jointly. At trial, the confessions of

Siperko, Hammock, and appellant were admitted in evidence in a redacted form, eliminating all

references to the codefendants. Each admitted taking part in the crime, but denied being the one who

pulled the trigger. The fourth indicted conspirator, Matthew Harris, testified as an accomplice

witness for the State.3 He told the jury that in May or June of 2005, he and the other three got

together and started committing car burglaries. About three days before the murder, Harris said that

appellant mentioned doing some “kick doors,” that is, home invasion robberies. Hammock said that

they needed to be armed in case they ran into resistance. Harris, Hammock, and appellant went to

a pawn shop to buy a pistol. Appellant purchased the gun, as he was the only one old enough to do

so. Appellant later showed Hammock how to load and use the gun; Harris wiped it off after handling

it because he had learned about fingerprints from television. On the night of the murder, all four of

them met at 11:30 p.m. They dressed in dark clothing, wore gloves, and had something to cover

their faces. They burglarized several vehicles and took check books.

               When they returned to their car, the subject of doing a “kick door” came up again.

They checked to see if they had everything they needed. Hammock displayed the gun. Appellant

had a utility knife and handcuffs. Harris and Siperko had zip ties to restrain anyone who might be

at home. After driving around and rejecting two or three houses, they settled on Gonzalez’s. They


   3
     At the time of trial, Harris was indicted for the same crimes and was in jail awaiting trial. He
did not have a plea bargain agreement but said that he testified against the other three so he could
“get this off my chest and also hopefully it might help me in the long run.”

                                                  3
walked around the house looking for a security system; appellant cut all of the wires to the house.

Hammock pointed out that he could see someone asleep in the bedroom but they decided to go

ahead. Siperko and Hammock were to go directly to the bedroom and subdue Gonzalez.

               Harris and appellant went to the back door and kicked it in. Harris saw Siperko and

Hammock go toward the bedroom. As he and appellant entered, he heard someone yelling “get

down” and then heard a shot. Harris ducked down and saw Siperko running by him with Hammock

following. Hammock then stopped, pointed the gun through the window, and fired. Harris could

hear groaning; Hammock fired twice more.

               The group then finished the robbery and took the stolen property to Harris’s residence

to unload. They began writing out the checks they had taken in the car burglaries. Appellant

and Harris returned to Gonzalez’s residence and took the pickup and additional items. After

unloading, they decided to get rid of the truck and drove it into Stillhouse Hollow Lake. Appellant

and Siperko then tried to cash the checks but were unsuccessful because the checks were over

the amount allowable at the check-cashing station at the convenience store. This check-cashing

attempt eventually resulted in their apprehension because one of the persons from whose car the

check was stolen detected the attempt to pass the check and reported it to his bank. Ultimately, the

check-cashing location was identified as the 7-11 store, the surveillance tapes viewed, and the

defendants identified.

               At trial, the court’s instructions to the jury included the law of parties. The court also

instructed the jury that it was not to consider the redacted confessions of the respective codefendants

against anyone other than the defendant who had signed that confession. The jury found appellant



                                                   4
and the two other defendants guilty of the offense of capital murder and the sentence was

automatically imposed at life in the Texas Department of Criminal Justice Institutional Division.

In one issue on appeal, appellant contends that the trial court abused its discretion in denying

appellant’s motion to sever his trial from that of Hammock.


                                             Discussion

                As a preliminary matter, the State notes that the motion to sever does not appear in

the clerk’s record and the State has been unable to locate a copy. However, there was a hearing on

the motion to sever and the reporter’s record is part of the record in the case. At the hearing on the

motion, appellant contended that it should be granted because he was the oldest of the conspirators

and feared that codefendant Hammock, a juvenile certified for trial as an adult, would attempt to

place blame on appellant because of his age and “because of other circumstances that will come out

on the witness stand in this case.” In other words, he would have two opponents: Hammock and

the State. He asserted antagonistic defenses existed because everyone claimed someone else actually

pulled the trigger.

                Two or more defendants may, at the discretion of the court, be tried jointly for any

offense growing out of the same transaction unless, upon timely motion to sever, it is shown either

that there is a previous admissible conviction against one defendant or that a joint trial would be

prejudicial to any defendant. Tex. Code Crim. Proc. Ann. art 36.09 (West 2006). Appellant argues

only the second ground, contending that he and Hammock had antagonistic defenses.

                The court of criminal appeals held in Qualley v. State that the existence of

antagonistic defenses was not by itself grounds for severance. 206 S.W.3d 624, 636 (Tex. Crim.



                                                  5
App. 2006) (citing Zafiro v. United States, 506 U.S. 534 (1993); abandoning contrary language in

Goode v. State, 740 S.W.2d 453 (Tex. Crim. App. 1987)). The court noted that the commentary to

article 36.09 of the code of criminal procedure suggested that the Legislature intended for defendants

accused of the same offense to be tried together most of the time. Id. at 631-32. After observing

“prejudicial” was undefined and somewhat ambiguous, the court later said that it could not mean the

types of “circumstances or disagreements between parties that would normally be expected to pop

up during any trial containing multiple defendants.” Id. The court concluded that the correct

standard to establish prejudice was that “the defendant must show a serious risk that a specific trial

right would be compromised by a joint trial, or that a joint trial would prevent the jury from making

a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed

by lesser curative measures, such as a limiting instruction.” Id. at 636.

               Mere proof of differing degrees of culpability will not support a severance; the

codefendants’ positions must be mutually exclusive so that if the jury believes one, it must

necessarily disbelieve the other. Davila v. State, 4 S.W.3d 844, 847 (Tex. App.—Eastland 1999,

pet. ref’d); Gibbons v. State, 794 S.W.2d 887, 891 (Tex. App.—Tyler 1990, no pet.). To establish

inconsistent or antagonistic defenses, the defendant must show, by offer of proof or otherwise, what

the defense would be if the defendant were not being tried with the codefendant. Davila, 4 S.W.3d

at 847. The defendant has the heavy burden of showing clear prejudice from the denial of a

severance. Gibbons, 794 S.W.2d at 891.

               Appellant’s fundamental complaint seems to be that a joint trial prejudiced him

because, although all four defendants went into Gonzalez’s house to rob him, only one fired the

shots. He claims that he was unable to show his individual lack of intent to shoot because of the

                                                  6
joint trial. However, under the facts of the case, whether he personally shot or intended to shoot

Gonzalez was not the controlling issue.

                The court charged the jury on the law of parties, instructing the jury that if in the

attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the

coconspirators, all conspirators are guilty of the felony actually committed, though having no intent

to commit it, if the offense was committed in the furtherance of the unlawful purpose and was one

that should have been anticipated as a result of carrying out of the conspiracy.4

                The evidence showed that all four participated in a conspiracy to commit several car

burglaries that then escalated into a plan to do a “kick door.” They discussed the need to obtain a

gun in case someone was home and resisted; appellant purchased a gun. All four carefully prepared.

They continued with the robbery despite noticing Gonzalez asleep in a bedroom. Hammock and

Siperko went into Gonzalez’s bedroom to subdue him, he resisted, and was shot. All four continued

to loot the home and two of them even returned to take more property and Gonzalez’s pickup truck.

They attempted to cash stolen checks using identification stolen from Gonzalez. The proceeds of

the robbery were to be split among them.

                All of the defendants were involved in committing the robbery. If a group of people

buys a gun to take along in case of resistance while breaking into a house, using the gun to shoot a

person in the house is an offense that should have been anticipated. All four knew that Hammock

had the gun with him when they went into the house. All four knew the house was occupied at that

moment. Under the charge as applied to the facts, all four were culpable regardless of who the

“triggerman” was. In any event, appellant’s counsel argued lack of intent and differing culpable


   4
       See Tex. Penal Code Ann. § 7.02(b) (West 2003).

                                                  7
mental states extensively, so appellant could not have been deprived of any specific right to try to

demonstrate a lack of intent.

               Appellant also complains that counsel for Hammock identified him as the

“triggerman” to the jury. In his final argument, however, Hammock’s attorney merely noted

appellant’s part in the scheme and stated that it could have been any one of the four conspirators

who had the gun or “a player to be named later.” He even stated, “Please, I’m not trying to blame

Mr. Alligood.” These statements do not rise to the level of an antagonistic defense, as the jury could

have believed that neither appellant nor Hammock was the one who pulled the trigger; believing

Hammock was not the actual shooter did not necessarily mean that they had to believe appellant was

the shooter as they had at least two other choices.


                                            Conclusion

               Appellant has not shown an abuse of discretion in the trial court’s overruling of his

motion to sever as he has not shown “prejudice.” See Qualley, 206 S.W.3d at 636. Accordingly,

we overrule appellant’s sole point of error and affirm the judgment of the trial court.




                                       W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: July 12, 2007

Do Not Publish

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