Opinion
No. 06-02-00164-CR.
Submitted: May 16, 2003.
Decided: August 6, 2003. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 29345-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
While taking items from a duplex not their own, John Thomas Allen and Joshua Freeman were discovered by a neighbor. The neighbor called police, who promptly caught and arrested both Allen and Freeman. Allen and Freeman were tried together before a jury, and each was convicted, Allen for the offense of burglary of a habitation. Allen's sole point of error on appeal asserts only that the trial court erred by jointly trying Allen and Freeman. Allen contends that, given Freeman's extensive criminal record, the joint trial improperly prejudiced Allen, because at trial Freeman's prior convictions, and the resulting enhancement paragraph of Freeman's indictment, were read to the jury. As proof of prejudice, Allen points out he received a sentence near the top of his punishment range, while Freeman did not. With two exceptions, the trial court has the discretion to try two or more defendants jointly or separately. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex.Crim.App. 2000). Severance is mandatory where one defendant has an admissible prior conviction and the person seeking the severance does not; otherwise, severance is not a matter of right, but rests within the sound discretion of the trial court. Garza v. State, 622 S.W.2d 85 (Tex.Crim.App. 1981) (op. on reh'g); Mendoza v. State, 61 S.W.3d 498, 505 (Tex.App.-San Antonio 2001), aff'd, 88 S.W.3d 236 (Tex. 2002); Loveless v. State, 800 S.W.2d 940, 945 (Tex.App.-Texarkana 1990, pet. ref'd). Since Allen did have prior convictions, the decision to try Allen and Freeman together was discretionary with the trial court. Mendoza, 61 S.W.3d at 502; see Patterson v. State, 783 S.W.2d 268, 270 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). When an accused is not entitled to a severance as a matter of right, the denial of a severance motion by the trial court constitutes an abuse of discretion only when the movant satisfies the "heavy burden" of showing "clear prejudice." See Patterson, 783 S.W.2d at 270. An allegation that prejudice will result is not a sufficient showing of prejudice under Article 36.09 of the Texas Code of Criminal Procedure when the severance is discretionary. See id. An abuse of discretion occurs not when, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but when the trial court acted without reference to any guiding rules or principles. The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). In this case, since both defendants were shown to have criminal records, and especially since Allen was also shown to have a prior conviction, albeit at state jail felony level, for burglary of a building, we do not find that Allen was improperly prejudiced. Accordingly, we conclude the trial court did not abuse its discretion by trying the cases together. We affirm the judgment.
The record reflects that Freeman had two prior felony convictions (including one burglary of a habitation) and three prior misdemeanor convictions. Freeman's enhancement paragraph was for the burglary of a habitation. There were no enhancement paragraphs in Allen's indictment, but the record shows he had previously been convicted of two state jail felony charges, including burglary of a building.
Allen was sentenced to a term that was close to the top of his punishment range, while Freeman received a term in the middle of the range of punishment applicable to his charge. The ranges, however, were not the same. The maximum sentence for Allen was twenty years, of which he received eighteen, and the maximum sentence for Freeman was ninety-nine years or life, of which he received forty. This does not support Allen's contention of prejudice.