No. 05-08-01580-CR
Opinion Filed April 19, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 380th Judicial District Court Collin County, Texas, Trial Court Cause No. 380-80610-08.
Before Justices O'NEILL, LANG, and MYERS.
Opinion By Justice LANG.
Luis Alberto Rojas-Diaz was charged with aggravated robbery and burglary of a habitation. The State consolidated the cases, and appellant filed a pretrial motion to sever that the trial court denied. Following appellant's pleas of not guilty, the jury returned a verdict of guilty as to aggravated robbery and burglary. Then, the jury assessed punishment at forty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000 for the aggravated robbery case. For the burglary case, the jury assessed punishment at fifteen years and a fine of $2,500. Appellant appeals only the aggravated robbery conviction. On appeal, appellant contends the trial court erred in denying appellant's motion to sever his burglary charge from his aggravated robbery charge and he was harmed by this error. The State acknowledges the error, but denies appellant was harmed. Because we conclude the trial court erred by denying appellant's motion to sever the burglary case from the aggravated robbery case and he was thereby harmed, we reverse the trial court's judgment for the aggravated robbery case and remand for further proceedings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant's convictions for aggravated robbery and burglary were for two different incidents, occurring two and a half months apart, at homes in Plano, Texas. The robbery occurred on the morning of September 20, 2007 at the home of Jackie and Vincent Wang. Mr. and Mrs. Wang returned from grocery shopping, found their home had been burglarized, and started searching their home to determine what had happened. During the search, an intruder with "long" and "curled hair" "jumped" Mrs. Wang and ordered her to kneel face down on the floor as he covered her with a quilt. Mrs. Wang testified that the person who "pressed" her down was wearing black slip-on shoes embossed with a white logo of a small person. After Mrs. Wang screamed, Mr. Wang came into the room and fought with the intruder. The intruder whistled, and two more men came into the room. One of the intruders put a gun to Mr. Wang's head and forced him to open his safe inside of a bedroom closet. The intruders took the contents from the safe, tied up Mr. Wang, and left him inside the closet as they left the house. The intruders were described as three dark skinned men. The police determined that the intruders had entered the home by breaking a window. They found a fingerprint on the bench inside the home below the window. The fingerprint was entered into the police fingerprint database. The burglary occurred on November 30, 2007 at another home in Plano. Li Yan, a college student, was alone at her father's home when she heard knocking on the front door. Ms. Yan ignored it, and after the knocking stopped, she heard glass breaking. She saw two men in the backyard attempting to open the back door through the broken glass window. She left through the front door and called the police. The police apprehended one of the burglars fleeing in a vehicle and another as he attempted to climb over a wall in the alley-way. Inside Ms. Yan's house, the police found appellant and a fourth burglar. As appellant attempted to flee, the police arrested him. A search of appellant found a window punch tool typically used in burglaries to break windows. Appellant also had a cut on his hand that he told police he had sustained from the broken window at Ms. Yan's house. He was wearing black shoes embossed with a white logo of a small man. Appellant's book-in photograph shows he had shoulder-length, curly hair. When the police entered appellant's fingerprints into the fingerprint database, one of his prints matched the fingerprint from the September 20 robbery at the Wang home. Appellant was charged with aggravated robbery and burglary, and the State consolidated the two cases. Appellant's motion to sever the burglary offense from the aggravated robbery offense was denied, and the two offenses were tried together. On appeal, appellant contends the trial court's denial of his motion to sever was error and he was thereby harmed. II. LEGAL AUTHORITIES
A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Penal Code Ann. § 3.02 (Vernon Supp. 2009). 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 (Vernon Supp. 2009). Where a trial court has erred in denying severance, a conviction will not be reversed unless an appellate court first determines appellant was harmed by that error. See Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000). The error is harmless if it did not adversely affect the appellant's substantial rights. Id. at 470-72; see Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Darling v. State, 262 S.W.3d 913, 917 (Tex. App.-Texarkana 2008, pet. ref'd). Rule 44.2(b) requires the appellate court to examine error in relation to the entire proceeding and determine whether it had a substantial and injurious effect or influence in determining the jury's verdict. Rodriguez v. State, 90 S.W.3d 340, 357-58 (Tex. App.-El Paso 2001, pet. ref'd) (citing King, 953 S.W.2d at 271). Further, it is "the responsibility of the appellate court to assess harm after reviewing the record and that the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on the appellant or the State." Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). A denial of a motion to sever may be deemed harmless if the evidence of the second charge was admissible as "same transaction contextual evidence." Trevino v. State, 228 S.W.3d 729, 733 (Tex. App.-Corpus Christi 2006, pet. ref'd). "[I]n a joint trial of two offenses, when the offenses are intertwined in one inseparable transaction, all evidence showing the circumstances of the transaction, the events immediately before and after the event, and the general context of the offense is admissible." King v. State, 189 S.W.3d 347, 354 (Tex. App.-Fort Worth 2006, no pet.). In Llamas v. State, the Court of Criminal Appeals concluded the trial court erred in denying a severance motion and the error resulted in harm. Llamas, 12 S.W.3d at 472. Llamas, the appellant, was charged in separate indictments for possession of a motor vehicle with an altered vehicle identification number and possession of cocaine. The Court of Criminal Appeals stated the rule that to judge the likelihood that harm occurred, appellate courts must consider everything in the record. Id. at 471. In evaluating whether there was harm, the Court of Criminal Appeals agreed with the lower court's observations that "evidence as to the cocaine charge was admitted in this trial that would otherwise not be relevant to the possession of altered identifications numbers and vice versa." Id. at 472. It also noted that at least five times during voir dire, venire persons commented in front of the entire jury panel that they were concerned appellant had two charges against him. Id. The Court of Criminal Appeals concluded that it could "not be sure that the error did not have a substantial or injurious effect on the jury's verdict." Id. at 472. III. ANALYSIS
In support of his argument that the trial court erred by denying his motion to sever and he was thereby harmed, appellant contends the two offenses were far from "intertwined in one inseparable transaction." He asserts there are clear specific differences between the two offenses: the offenses occurred two and a half months apart and in different zip codes in Plano; the robbery involved a firearm, while the burglary did not; the robbery occurred in the morning and the burglary occurred in the afternoon; and as to the robbery, the perpetrators were waiting for the victims to come home to open a safe, while as to the burglary, there was continuous knocking by the perpetrators prior to entering. The State acknowledges the denial of the motion to sever was error, but asserts the error was harmless because much of the evidence from the burglary could have been admitted into evidence at trial without mentioning the burglary itself. Further, the State asserts that evidence would have been sufficient to assure a conviction for the robbery without evidence of the fact there had been a burglary. In support of this position, the State first argues the fingerprint of appellant from the burglary could be admitted as evidence and matched to the fingerprint of appellant at the robbery site. Second, the State contends it could have introduced the appellant's shoe to show the same distinct shoe was worn by the perpetrator in the burglary. Third, the State argues it could have introduced a picture of appellant showing his shoulder length hair in order for the victim in the robbery to identify him. Fourth, the State argues appellant's punch tool could have been admitted into evidence to show that appellant possessed a type of tool that is generally used for breaking windows. Finally, the State argues the error was harmless because evidence of the burglary was admissible to rebut appellant's defensive theory that appellant was not in the Wang's house to commit robbery. We conclude the trial court erred by denying the motion to sever. However, before we may reverse appellant's conviction, we must first determine whether appellant was harmed by the trial court's error. See Llamas, 12 S.W.3d at 471. After reviewing everything in the record, we cannot determine whether appellant would have been convicted of aggravated robbery if he was afforded a separate trial for the burglary charge. Further, we cannot say for certain whether evidence of the burglary offense, namely, the fingerprints, shoes, punch tool, and photographs depicting appellant's physical appearance, would have been properly admitted in a separate trial for aggravated robbery. However, 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. Because we "can not be sure that the error did not have a substantial or injurious effect on the jury's verdict" in the aggravated robbery case, we resolve appellant's issue in his favor. See Llamas, 12 S.W.3d at 472. We decide appellant's issue in his favor. The trial court's judgment is reversed and remanded for further proceedings.