Affirmed and Memorandum Opinion filed August 21, 2018.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00366-CR
                              NO. 14-17-00367-CR


                      JAMAL D. MCQUEEN, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 248th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1531091 & 1531092

                 MEMORANDUM OPINION


      A jury convicted appellant Jamal D. McQueen of aggravated robbery with a
deadly weapon and sentenced him to confinement in the Institutional Division of the
Texas Department of Criminal Justice for sixty years. Further, the jury assessed a
fine in the amount of $10,000 (trial court cause number 1531091; appeal No. 14-17-
00366-CR). The jury also found appellant guilty of evading arrest or detention–
second offender and assessed punishment at confinement in a state jail facility for
two years and a fine of $10,000 (trial court cause number 1531092; appeal No. 14-
17-00367-CR). The sentences were ordered to run concurrently. From those
judgments, appellant brings this appeal.
      In a single issue, appellant claims the trial court erred by granting the State’s
motion to consolidate the charged offenses. We first address the State’s argument
that appellant’s argument on appeal does not comport with his objection at trial.
      To preserve a complaint for appellate review, a party must have presented a
timely request, objection, or motion to the trial court stating the specific grounds for
the ruling desired. Tex. R. App. P. 33.1(a). A complaint is not preserved for appellate
review if the legal basis for the complaint on appeal varies from the complaint made
at trial. Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); see
also Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (noting that,
“[i]f a trial objection does not comport with arguments on appeal, error has not been
preserved”); Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App.
2014) (stating that, “[w]e are not hyper-technical in examination of whether error
was preserved, but the point of error on appeal must comport with the objection
made at trial”).
      The State’s motion to consolidate was filed on April 7, 2017. Prior to voir dire
on May 1, 2017, the trial court asked if the State had any matters that needed to be
addressed. The State raised the motion to consolidate. Defense counsel responded
that his objection was contained in his motion in limine regarding extraneous
offenses. Counsel argued “the evading” was not “contemporaneous with the
aggravated robbery” and was therefore an extraneous offense. Counsel complained
“the jury would be invited to consider evidence of a crime that – an alleged crime
that has nothing to do with the State’s burden of proof in the robbery case. It’s an
extraneous offense. The jury should not be able to consider it on guilt or innocence.”
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Counsel then argued his motion in limine regarding extraneous offenses should be
granted.
      The State answered as follows:
      . . . [B]oth of these actions arose out of the same criminal episode. The
      aggravated robbery took place on November 1st of 2016. The evading
      arrest on foot took place on November 16th 2016. Although those are
      different dates, the police department was actively looking for Mr.
      McQueen, was actively looking for Mr. McQueen on those dates and
      was conducting active surveillance on the location. And when they
      identified him as the suspect in the aggravated robbery, that was when
      they tried to make the arrest on the aggravated robbery, and he fled on
      foot. The argument would be that these are not two different criminal
      episodes but a single criminal episode.
      Defense counsel responded by arguing that the State’s evidence would
encourage the jury to find appellant guilty “aside from the facts alleged . . . with
respect to the robbery. It’s not relevant.”

      On appeal, appellant makes the following argument as to error:

            The Texas Penal Code permits the consolidation of separate
      criminal charges against a defendant that arise out of a single criminal
      episode. Tex. Penal Code Ann. § 3.02.2 However, the code grants a
      defendant the absolute right to sever subject to the exclusion(s) set forth
      in Section 3.03 of the Texas Penal Code. See Tex. Penal Code Ann.
      § 3.02; and Tex. Penal Code Ann. § 3.03( b).
             The State filed a Motion to Consolidate the Aggravated Robbery
      Charge (alleged to have been committed on November 1, 2016) and the
      Evading Detention Charge (alleged to have been committed on
      November 16, 2016) claiming the offenses arose out of the same
      criminal episode. [citations to the record omitted] Trial Counsel for
      McQueen objected. [no citations to the record] Nonetheless, despite the
      inapplicability of Section 3.03, the State’s Motion was granted by the
      Trial Judge. [citations to the record omitted]
             A criminal episode means the commission of two or more
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      offenses regardless of whether the harm is directed or inflicted upon
      more than one person or item of property if: (1) the offenses are
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       committed pursuant to the same transaction or pursuant to two or more
       transactions that are connected or constitute a common scheme or plan;
       or (2) the offenses are the repeated commission of the same or similar
       offenses. Tex. Penal Code Ann. § 3.01.

The remainder of appellant’s brief is devoted to a harm analysis.

       We agree with appellant’s assertion on appeal that a defendant has the right
to sever two or more offenses that have been consolidated or joined for trial under
section 3.02. Tex. Penal Code § 3.04 (citing Tex. Penal Code § 3.02). However, no
motion to sever was filed in this case. Appellant’s argument in the trial court does
not constitute a verbal motion for severance because appellant never indicated that
he desired separate trials. See Coleman v. State, 788 S.W.2d 369, 373 (Tex. Crim.
App. 1990). Appellant also failed to apprise the trial court of the argument made on
appeal that the offenses did not arise from the same criminal episode. But see id.
(recognizing appellant’s motion was a complaint that the offense were improperly
joined assaultive offenses and that he was requesting the State to elect one on which
to proceed to conviction). Because the legal basis for appellant’s argument on appeal
varies from the complaint made at trial, any error has not been preserved. See Lovill,
319 S.W.3d at 691–92; see also Thomas, 505 S.W.3d at 924 Bekendam, 441 S.W.3d
at 300.
       Accordingly, appellant’s issue is overruled. In each case, the judgment of the
trial court is affirmed.




                                              /s/    John Donovan
                                                     Justice
Panel consist of Justices Boyce, Donovan and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).



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