Opinion
Nos. 05-02-01617-CR, 05-02-01618-CR.
Opinion issued May 3, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court Rockwall County, Texas, Trial Court Cause Nos. CR00-0466 CR00-0467. Reversed and Remanded.
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
Following the abatement of Chanda Leigh Bennett's appeal to allow the trial court to conduct a competency inquiry, we now address appellant's additional complaints stemming from her convictions for driving while intoxicated and failure to identify. Because we conclude the trial court erred by denying appellant's motion to sever the DWI case from the failure to identify case, we reverse the trial court's judgments and remand for further proceedings. A police officer arrested appellant for driving while intoxicated after she failed field sobriety tests and admitted to him that she had been drinking. The officer found several open beer bottles in her car and could smell alcohol on appellant. When the officer asked appellant her name, she said it was "Melissa Cruz." She later admitted to the officer that she had given him a false name because there were warrants out for her arrest. She refused to give the officer a specimen of her breath. In her first issue, appellant complains that the trial court erred by denying her motion to sever the DWI case from the failure to identify case. The State in its brief simply states that it "offers no argument" in response to this issue. A defendant may be prosecuted in a single trial "for all offenses arising out of the same criminal episode." Tex. Pen. Code Ann. § 3.02(a) (Vernon 2003). When two offenses have been consolidated under section 3.02, however, the defendant "shall have a right to a severance of the offenses." Id. § 3.04(a). Appellant's motion to sever was denied in both cases. The trial court therefore erred by denying the motion. Nevertheless, before we may reverse appellant's convictions, we must first determine whether she was harmed by the trial court's error. See Llamas v. State, 12 S.W.3d 469, 471 (Tex.Crim.App. 2000). Non-constitutional error that does not affect an appellant's "substantial rights" must be disregarded. See Tex.R.App.P. 44.2(b). Here, we cannot determine from the record what effect the trial court's error had in either case. We do not know whether appellant would have been convicted of DWI or failure to identify if she had been allowed two separate trials. We cannot say for certain whether evidence of one of appellant's charged offenses would have been properly admitted in a separate trial for the other offense. But we do know that, because the trial court refused to sever the cases, appellant was absolutely foreclosed from preventing the jury from hearing evidence of both offenses at once. See Llamas, 12 S.W.3d. at 472. Because we "can not be sure that the error did not have a substantial or injurious effect on the jury's verdict" in either case, we resolve appellant's first issue in her favor. See id. Due to our disposition of appellant's first issue, we need not address her remaining issues. We reverse the trial court's judgments and remand for further proceedings.
In a previous opinion, we abated the appeal and remanded the cause to the trial court so it could conduct an inquiry on whether there was evidence at the time of appellant's trial to support a finding of incompetency. The trial court has now conducted the inquiry and, following a psychological evaluation of appellant, determined that appellant was competent to stand trial on October 1, 2002, the date she was tried. Although we permitted appellant to file a supplemental brief following the trial court's determination, she has elected not to do so.