NO. 13-14-00249-CR

IN THE COURT OF APPEALS 

FOR THE THIRTEENTH DISTRICT OF TEXAS 

AT CORPUS CHRISTI 

JUAN VELA, 

APPELLANT, 

VS.

THE STATE OF TEXAS, 

APPELLEE.

ON APPEAL FROM THE 128TH DISTRICT COURT 

NUECES COUNTY, TEXAS 

TRIAL COURT NUMBER 13-CR-3438-A 

BRIEF FOR THE STATE 

Adolfo Aguilo, Jr. 

State Bar No. 00936750 

Assistant District Attorney 

105th Judicial District of Texas 

901 Leopard, Room 206 

Corpus Christi, Texas 78401 

(361) 888-0410 

(361) 888-0399 (fax) 

adolfo.aguilo@co.nueces.tx.us 

Attorney for Appellee 

ORAL ARGUMENT IS NOT REQUESTED

ACCEPTED

13-14-00249-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

2/2/2015 3:44:01 AM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 2/2/2015 3:44:01 AM DORIAN E. RAMIREZ Clerk
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................... iii

STATEMENT OF FACTS ..............................................................................1

SUMMARY OF THE ARGUMENT..............................................................9

1. Reply to Appellant’s Issue: 

A. The trial court did not err in denying Appellant’s motion because 

Appellant was not entitled to a severance of just one of the charged 

offenses.

B. Appellant’s argument incorrectly treats the offenses alleged in the 

first two counts of the indictment as one offense.

C. A review of the entire record reveals that Appellant’s substantial 

rights were not affected by the trial court’s denial of his motion.

ARGUMENT................................................................................................ 10

1. Reply to Appellant’s Issue........................................................................ 10

 Applicable Law .......................................................................................... 10

 Facts........................................................................................................... 14

 Discussion.................................................................................................. 15

 

PRAYER....................................................................................................... 23

RULE 9.4 CERTIFICATE OF COMPLIANCE.......................................... 24

CERTIFICATE OF SERVICE..................................................................... 25
iii

INDEX OF AUTHORITIES

Cases

Blackshear v. State, 385 SW3d 589

(Tex. Crim. App. 2012) ................................................................................ 22

Coleman v. State, 788 SW2d 369

(Tex. Crim. App. 1990) .......................................................................... 11, 15

Couret v. State, 792 SW2d 106

(Tex. Crim. App. 1990) ................................................................................ 21

Devoe v. State, 354 SW3d 457

(Tex. Crim. App. 2011) .......................................................................... 17 n.4

Dickson v. State, 246 SW3d 733

(Tex. App.-Houston [14th Dist.] 2007, pet. ref’d)......................................... 18

Dominguez v. State, 62 SW3d 203

(Tex. App.-El Paso 2000, pet. ref’d) ............................................................ 17

Ex parte Hawkins, 6 SW3d 554

(Tex. Crim. App. 1999) ................................................................................ 16

Ex parte Padron, 16 SW3d 31

(Tex. App.-Houston [1st Dist.] 2000, pet. ref’d)........................................... 16

Frias v. State, No.03-12-00463-CR, 2014 WL 3410592

(Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op., not designated for 

publication) ............................................................................................. 23 n.5

Guia v. State, 723 SW2d 763

(Tex. App.-Dallas 1986, pet. ref’d) .............................................................. 11

Johnson v. State, 68 SW3d 644

(Tex. Crim. App. 2002) ................................................................................ 17

King v. State, 189 SW3d 347

(Tex. App.-Fort Worth 2006, no pet.) .................................................... 13, 14
iv

Lane v. State, 933 SW2d 504

(Tex. Crim. App. 1996) .......................................................................... 17, 18

Llamas v. State, 12 SW3d 469

(Tex. Crim. App. 2000) .................................................................... 12, 13, 20

Llamas v. State, 991 SW2d 64

(Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (Tex. Crim. App. 2000).. 20

Lopez v. State, Nos. 03-06-00647-CR, 03-06-00659-CR, 2007 WL 2214615

(Tex. App.-Austin Aug. 1, 2007, pet. ref’d) (mem. op., not designated for 

publication) ................................................................................................... 14

Mock v. State, 848 SW2d 215

(Tex. App.-El Paso 1992, pet. ref’d) ................................................ 10, 11, 15

Nelson v. State, 864 SW2d 496

(Tex. Crim. App. 1993) .................................................................... 10, 11, 15

Peña v. State, 867 SW2d 97

(Tex. App.-Corpus Christi 1993, pet. ref’d)................................................. 19

Ramirez v. State, No. 04-09-00323-CR, 2010 WL 480495

(Tex. App.-San Antonio Nov. 10, 2010, pet. ref’d) (mem. op., not designated 

for publication)........................................................................................ 23 n.5

Ransom v. State, 503 SW2d 810

(Tex. Crim. App. 1974) .......................................................................... 18, 19

Rodriguez v. State, 90 SW3d 340

(Tex. App.-El Paso 2001, pet. ref’d) ............................................................ 17

Scott v. State, 235 SW3d 255

(Tex. Crim. App. 2007) .................................................................... 12 n.3, 22

Segundo v. State, 270 SW3d 79

(Tex. Crim. App. 2008) .......................................................................... 17, 19

Silva v. State, 831 SW2d 819

(Tex. App.-Corpus Christi 1992, no pet.)..................................................... 12
v

Thornton v. State, 986 SW2d 615

(Tex. Crim. App. 1999) ............................................................................... 12

Tovar v. State, 165 SW3d 785

(Tex. App.-San Antonio 2005, no pet.) ........................................................ 16

Trevino v. State, 228 SW3d 729

(Tex. App.-Corpus Christi 2006, pet. ref’d)........................................... 13, 16

Werner v. State, 412 SW3d 542

(Tex. Crim. App. 2013) .................................................. 10, 11, 13, 21, 22, 23

Statutes and Rules

Tex. Code Crim. Proc. art. 21.24(a) ....................................................... 10 n.1

Tex. Code Crim. Proc. art. 37.10(b) ....................................................... 23 n.5

Tex. Penal Code § 3.01(1), (2) ..................................................................... 10

Tex. Penal Code § 3.02........................................................................... 10, 11

Tex. Penal Code § 3.02(a) ............................................................................ 10

Tex. Penal Code § 3.02(b)...................................................................... 11 n.1

Tex. Penal Code § 3.03(a) ............................................................................ 23

Tex. Penal Code § 3.04(a) .......................................................... 11, 12, 13, 22

Tex. Penal Code § 3.04(c) ...................................................................... 11 n.2

Tex. Penal Code § 12.42(d)................................................................ 1, 23 n.5

Tex. Penal Code § 29.03(a)(2).........................................................................1

Tex. R. App. P. 38.1(i).................................................................................. 15

Tex. R. App. P. 43.2(b)........................................................................... 23 n.5
vi

Tex. R. App. P. 44.2(b)................................................................................. 13

Treatises

43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal 

Practice and Procedure § 38.1 (3d ed. 2011) .............................................. 11

43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal 

Practice and Procedure § 38.44 (3d ed. 2011) ............................................ 11

6 Michael B. Charlton, Texas Practice: Texas Criminal Law § 3.4 (2d ed. 

2001) ............................................................................................................. 15
No.13-14-00249-CR

JUAN VELA, Appellant,

VS.

THE STATE OF TEXAS, Appellee.

****************************

IN THE COURT OF APPEALS 

FOR THE 

THIRTEENTH DISTRICT OF TEXAS

BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

Appellant was charged by indictment with three counts of aggravated 

robbery. C.R. at 5-6. See Tex. Penal Code § 29.03(a)(2). A jury found him

guilty of each offense. C.R. at 74-76. After the jury found that Appellant was 

a habitual felony offender, see Tex. Penal Code § 12.42(d), it assessed his 

punishment at imprisonment for 45 years and a fine of $1000 for each 

offense. C.R. at 85-89. Appellant’s only issue on appeal contends that the 

trial court erred in denying his severance motion.

Statement of Facts

The first count of the indictment alleged that Appellant, on or about 

October 5, 2013 in Nueces County, Texas, did then and there, while in the 

course of committing theft of property and with intent to obtain or maintain 

control of said property, intentionally or knowingly threaten or place Lamar 

Luna in fear of imminent bodily injury or death, and Appellant did then and 

there use or exhibit a deadly weapon, to wit: a knife, which in the manner of 
2

its use or intended use was capable of causing serious bodily injury or death. 

C.R. at 5.

The second count of the indictment alleged that Appellant, on or about 

October 5, 2013 in Nueces County, Texas, did then and there, while in the 

course of committing theft of property and with intent to obtain or maintain 

control of said property, intentionally, knowingly or recklessly cause bodily 

injury to Amy Leija by cutting her with a knife, and Appellant did then and 

there use or exhibit a deadly weapon, to wit: a knife, which in the manner of 

its use or intended use was capable of causing serious bodily injury or death. 

C.R. at 6.

The third count of the indictment alleged that Appellant, on or about 

October 5, 2013 in Nueces County, Texas, did then and there, while in the 

course of committing theft of property and with intent to obtain or maintain 

control of said property, intentionally or knowingly threaten or place 

Damiana Torres in fear of imminent bodily injury or death, and Appellant 

did then and there use or exhibit a deadly weapon, to wit: a knife, which in 

the manner of its use or intended use was capable of causing serious bodily 

injury or death. C.R. at 6.

On October 5, 2013, Lamar Luna and Amy Leija were employed at 

the Dollar General on Morgan Street in Corpus Christi, Texas. 3 R.R. at 6 & 
3

61. Leija was an assistant manager and Luna was a cashier. 3 R.R. at 7-8. 

When Luna came to work at 11:00 a.m., she went to the back office to count 

the money in her register. After a while, Leija also went to the office to get a 

key from Luna. 3 R.R. at 9. She saw Luna on the floor bound with duct tape. 

Leija screamed and Appellant pushed her into the office before she could get 

help. When he pushed her into the office, Leija’s finger was cut by the 

kitchen knife Appellant was holding. 3 R.R. at 10 & 34. After Appellant 

asked her for it, she gave him the money from the safe near the registers. He 

took Luna’s register, the register from the safe, and the change fund. 

Altogether, he stole about $750. 

When Appellant and Leija returned to the office, he emptied a box 

and put a register and the change in it. He then walked out of the store with 

the box. 3 R.R. at 11-12. Before Appellant left, he told Leija to wait ten 

minutes before she called the police; if not, he had a gun. 3 R.R. at 25. After 

he left, Leija called the police and unbound Luna. 3 R.R. at 12. While 

Appellant was dealing with Leija, he also told her “[t]o calm down, that he 

just wanted the money from the safe.” 3 R.R. at 18. 

SX-1, a surveillance video from the store, was introduced into 

evidence without objection. 3 R.R. at 14. While viewing the video, Leija 

explained that prior to the robbery, Appellant walked down the aisles that 
4

contained knives. Also, Appellant is observed walking around the store 

holding some detergent and a lighter. The lighter was later found by the hair 

products. 3 R.R. at 19. Some detergent had been spilled near the entrance of 

the back room. 3 R.R. at 20. 

Besides the knife he was holding, Appellant was wearing a cap, a 

fleece sweater, baggy shorts, sunglasses, and gloves. 3 R.R. at 10 & 20. She 

described Appellant’s vehicle which was seen on the video as being black. 3 

R.R. at 21. On October 8, 2013, Leija was able to identify Appellant from a 

photo lineup. SX-2 & 9; 3 R.R. at 14-15 & 21. When she first saw 

Appellant’s photo, she knew it was him. 3 R.R. at 43. Before she went to the 

lineup, she had seen a photo of Appellant posted on Facebook after he 

robbed a Wal-Mart on October 5, 2013. SX-10; 3 R.R. at 27 & 34-35. She 

also saw a photo posted by a lady after she was involved in a vehicle 

collision with Appellant that same day. 3 R.R. at 36-37. Appellant was 

wearing different clothing during the Wal-Mart robbery. 3 R.R. at 28.

Luna testified that when she arrived to work on the morning of 

October 5, 2013, she got her till and took it to the back office to count her 

money. When she finished counting her money, she turned around toward 

the door. Appellant then “popped up” in front of her with a knife to her face. 

When Luna told Appellant that she just had $100, he tied her hands and 
5

covered her mouth with duct tape and told her to sit on the floor. 3 R.R. at 

63. 

When Leija came to the office, Appellant also threatened her with the 

knife. Leija then took him to the front of the store where the safe was. When 

they returned to the office, Appellant emptied a box and put the tills inside 

the box. Before he left through the front door, Appellant told them not to do 

anything because he had a gun. 3 R.R. at 64-65 & 68. Despite the 

circumstances, Luna described Appellant as having a “calm demeanor.” 3 

R.R. at 66.

On October 8, 2013, Luna had no problem identifying Appellant in a 

photo lineup. SX-52; 3 R.R. at 70. She had not seen any other photos of 

Appellant prior to the lineup. 3 R.R. at 72. She submitted her two-weeks’ 

notice a few days after the robbery. 3 R.R. at 77.

Damiana Torres, an employee of the Wal-Mart on Greenwood, was 

working in the MoneyCenter of the store around noon on October 5, 2013. 

While she was helping a customer, she heard other customers say, “There’s 

a fire, there’s a fire.” 3 R.R. at 136. She then noticed Appellant approaching 

the MoneyCenter. Appellant looked suspicious because he was wearing 

sunglasses and gloves. 3 R.R. at 136. When Torres finished with her 

customer, Appellant was right next to her holding a knife. 3 R.R. at 136-137. 
6

When Appellant asked her for the money, she explained that a manager had 

to press a button to open her register. At that time, all of the managers were 

preoccupied with the fire. Appellant kept telling her to hurry up and be calm. 

Appellant finally pulled the money box out from under the register and 

walked away with the box. 3 R.R. at 137-138. As he was walking away, 

Appellant said, “Stay down, stay down. I have a gun in my backpack.” He 

then exited through the grocery side doors. 3 R.R. at 138. Despite the 

circumstances, Torres described Appellant as being “real calm.” 3 R.R. at 

142.

SX-54, a surveillance video from the store, was introduced into 

evidence. 3 R.R. at 139. Torres was unable to identify Appellant when she 

was shown a photo lineup. 3 R.R. at 145. She was not asked if she could 

identify Appellant in the courtroom.

Ramiro Sanchez was at the Wal-Mart with his girlfriend on October 5, 

2013. While he was walking down an aisle, he saw Appellant wearing a 

black beanie, a black shirt, black glasses, blue jeans, latex gloves, and a 

backpack. Sanchez then talked to a store employee about what he had just 

seen. 3 R.R. at 93.

When Sanchez and his girlfriend approached the registers, people 

were yelling, “Fire, fire.” Sanchez then looked towards the MoneyCenter 
7

and saw Appellant walking out of the MoneyCenter and exiting the store 

with a big wooden box. The employee in the MoneyCenter was crying and 

yelling, “I got robbed. I got robbed.” 3 R.R. at 94. When he exited the store, 

Appellant was “walking calm, kind of just like trying to fit right in.” 3 R.R. 

at 96. Sanchez believed Appellant had set the fire to facilitate the robbery. 3 

R.R. at 95. A store employee told him Appellant left in a “blue . . . Ford 

Explorer or something.” 3 R.R. at 97.

Though he was not shown a photo lineup, 3 R.R. at 97, Sanchez was 

able to identify Appellant in the courtroom. 3 R.R. at 96. He had previously 

seen a photo of Appellant on Facebook. 3 R.R. at 95.

Cynthia Tijerina was with Sanchez on the day of the robbery. When 

she first saw Appellant, he was walking towards the back of the Wal-Mart 

wearing a beanie, sunglasses, a black shirt, pants, gloves, and a backpack. 

When they heard someone yell, “Fire,” she and Sanchez walked to the front 

entrance. At that time, she observed Appellant exiting the MoneyCenter with 

a wooden box. 3 R.R. at 108. Tijerina was able to identify Appellant in the 

courtroom. 3 R.R. at 109. Though she had not been asked to identify 

Appellant in a lineup, she had previously seen pictures of Appellant while 

watching the news on TV. 3 R.R. at 110.
8

On October 5, 2013, Nick Narvaez, a Corpus Christi police officer, 

was summoned to an accident in the 2300 block of Saratoga Boulevard 

involving a black Ford Explorer and a black Ford pickup truck. Appellant 

was the driver of the black Ford Explorer. 4 R.R. at 5-6 & 8. He was issued 

citations for not having a driver license and failing to control his speed. The 

collision occurred at 2:25 p.m. 4 R.R. at 7.

The State also introduced a surveillance video from the Dollar 

General at the intersection of Staples and Park. The video depicts Appellant 

in the store on October 5, 2013 at 9:19 a.m. SX-55; 3 R.R. at 147-149.

Katherine Pina, a crime scene investigator with the Corpus Christi 

Police Department, took photos of the scene at the Dollar General on 

Morgan Street. 3 R.R. at 48-49. Duct tape was sold at the store. 3 R.R. at 51-

52. Pina also went to the Wal-Mart at around 1:00 p.m. Firefighters were 

trying to clear out the smoke from the fire. 3 R.R. at 55. Appellant’s knife 

was found in the MoneyCenter area of the store on the floor mat next to the 

register. 3 R.R. at 56. Because Appellant wore gloves, she was unable to 

obtain any latent fingerprints. 3 R.R. at 57. The fire was started in the area of 

the store where toilet paper and paper towels may be found. Some toilet 

paper had been set on fire. There was a “very strong odor of detergent” and a 

light blue liquid on the floor. 3 R.R. at 58-59.
9

Officer Amado Garcia responded to the aggravated robbery call at the 

Dollar General. When Garcia arrived at the store, a male witness told him 

that he had seen Appellant get into a black 2000 model Ford Explorer. 3 

R.R. at 87.

Officer Ralph Torres was dispatched to the Wal-Mart on Greenwood. 

3 R.R. at 120. A store employee, Joe Ibarra, told Torres that “he possibly 

saw a second suspect.” 3 R.R. at 123.

Officer Luis Flores spoke with Jacob Reyna, a cart attendant at WalMart, who told him that he saw Appellant walking towards a blue 4-door 

Ford Explorer. 3 R.R. at 129. Flores also saw a kitchen knife on the floor in 

the financial center. 3 R.R. at 130-131. It was determined that Appellant had 

taken the knife from the kitchen area section of the store. Flores found the 

empty package that had contained the knife. 3 R.R. at 132.

Additional facts necessary for a resolution of Appellant’s issue will be 

recited in the reply to said issue.

Summary of the Argument

1. Reply to Appellant’s Issue: 

A. The trial court did not err in denying Appellant’s motion because 

Appellant was not entitled to a severance of just one of the charged 

offenses.

B. Appellant’s argument incorrectly treats the offenses alleged in the 

first two counts of the indictment as one offense.
10

C. A review of the entire record reveals that Appellant’s substantial 

rights were not affected by the trial court’s denial of his motion.

Argument

1. Reply to Appellant’s Issue:

In his only issue, Appellant contends that the trial court erred in 

denying his severance motion. Appellant’s Brief at 2.

Applicable Law

“A defendant may be prosecuted in a single criminal action for all 

offenses arising out of the same criminal episode.” Tex. Penal Code § 

3.02(a). Offenses arise out of the same criminal episode if “(1) the offenses 

are committed pursuant to the same transaction (a single crime spree) or 

more than one transaction if they are connected by a ‘common scheme or 

plan’; or (2) ‘the offenses are the repeated commission of the same or similar 

offenses.’” Werner v. State, 412 SW3d 542, 546 (Tex. Crim. App. 2013) 

(quoting Tex. Penal Code § 3.01(1), (2)). Prosecuting connected or related 

charges in a single criminal action promotes judicial economy. Id.

The decision to consolidate or join cases pursuant to § 3.02 belongs to 

the State. See Nelson v. State, 864 SW2d 496, 498 (Tex. Crim. App. 1993); 

Mock v. State, 848 SW2d 215, 219 (Tex. App.-El Paso 1992, pet. ref’d).1“A 

 

1 “Joinder” occurs when multiple offenses are alleged in the same charging 

instrument. Tex. Code Crim. Proc. art. 21.24(a). “Consolidation” occurs 
11

defendant does not have a right to consolidate offenses committed in the 

same criminal episode.” Nelson, 864 SW2d at 498 (emphasis in original); 

see also Mock, 848 SW2d at 218. Additionally, “the decision to consolidate 

prosecutions is not within the discretion of the trial court.” Guia v. State, 723 

SW2d 763, 768 (Tex. App.-Dallas 1986, pet. ref’d).

“Whenever two or more offenses have been consolidated or joined for 

trial under Section 3.02, the defendant shall have a right to a severance of 

the offenses.” Tex. Penal Code § 3.04(a). This section “grants defendants an 

absolute right to sever most charges that have been consolidated under 

Section 3.02.” Werner, 412 SW3d at 546.2

“‘Severance’ occurs when joined or consolidated charges are ‘split 

apart’ so that each charge can be tried separately.” 43 George E. Dix & John 

M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 38.1 at 

p. 389 (3d ed. 2011); see also id. at § 38.44 (“[T]he substance of the demand 

must make it clear that the defendant is objecting to joint trial of joined or 

consolidated charges. . . . A demand for severance states merely that the 

defendant wishes to be tried for only one offense in a single trial . . . .”);

Coleman v. State, 788 SW2d 369, 373 (Tex. Crim. App. 1990) (proper 

 

when offenses alleged in separate charging instruments are tried at the same 

time. Tex. Penal Code § 3.02(b).

2 § 3.04(c) provides that the absolute right to a severance is not applicable to 

certain offenses. Aggravated robbery is not one of those offenses.
12

severance motion must apprise trial court that it is “a motion to sever 

properly joined . . . offenses for separate trials”); Silva v. State, 831 SW2d 

819, 823 (Tex. App.-Corpus Christi 1992, no pet.) (“The appellant may 

timely request a severance so that he is tried for each count in a separate 

trial.”).3

The right to a mandatory severance under § 3.04(a) addresses two 

legitimate concerns:

(1) that the jury may convict a “bad man” who 

deserves to be punished-not because he is guilty of 

the crime charged but because of his prior or 

subsequent misdeeds; and (2) that the jury will 

infer that because the accused committed other 

crimes, he probably committed the crime charged.

Llamas v. State, 12 SW3d 469, 471-472 (Tex. Crim. App. 2000). Thus, “[t]he 

primary reason for a defendant to sever offenses is to limit the presentation of 

evidence of the defendant’s wrongdoing to one offense, rather than allowing 

presentation of evidence of multiple offenses.” Thornton v. State, 986 SW2d 

615, 617 (Tex. Crim. App. 1999). However, the granting of a severance does 

not preclude the admission of extraneous offenses pursuant to Rule 404(b) of 

 

3 When offenses that are subject to mandatory severance are joined or 

consolidated with offenses that are not subject to mandatory severance, a 

defendant may seek severance of those offenses that are subject to 

mandatory severance. See Scott v. State, 235 SW3d 255, 258 (Tex. Crim. 

App. 2007).
13

the Texas Rules of Evidence. Werner, 412 SW3d at 549; King v. State, 189 

SW3d 347, 354 (Tex. App.-Fort Worth 2006, no pet.). 

If a trial judge erroneously denies a severance motion, the error must be 

reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure. 

Llamas, 12 SW3d at 470. “In order to properly conduct a harm analysis under 

Rule 44.2(b), an appellate court need only determine whether or not the error 

affected a substantial right of the defendant. To make this determination, 

appellate courts must decide whether the error had a substantial or injurious 

effect on the jury verdict.” Id. at 471 n.2. Harm must be assessed “after 

reviewing the entirety of the record, including the evidence, jury charge, 

closing arguments, voir dire, and any other relevant information.” Werner, 412 

SW3d at 547.

Considering the two concerns addressed by § 3.04(a), courts have 

generally found the denial of a severance harmless if the evidence of one 

offense would have been admissible in the separate prosecution of the other 

offense. E.g., Werner, 412 SW3d at 549 (focusing “on whether evidence was 

admissible in the separate cases”); Trevino v. State, 228 SW3d 729, 733 (Tex. 

App.-Corpus Christi 2006, pet. ref’d) (no reversible error in failing to sever 

murder and aggravated assault offenses because the jury would have heard the 

same evidence as same transaction contextual evidence in separate trials); 
14

King, 189 SW3d at 354 (listing cases); Lopez v. State, Nos. 03-06-00647-CR, 

03-06-00659-CR, 2007 WL 2214615, at *3 (Tex. App.-Austin Aug. 1, 2007, 

pet. ref’d) (mem. op., not designated for publication) (severance error did not 

affect appellant’s substantial rights because, had the offenses been tried 

separately, it was probable that evidence from each offense would have been 

admissible in both trials to refute defensive theories).

Facts

During docket call on March 27, 2014, Appellant urged his motion to 

sever offenses that had been filed the same day. C.R. at 59; Supp. 2 R.R. at 3-

4. Appellant stated, “Your Honor, we are asking on this cause number to sever 

Count 3 from Counts 1 and 2. Counts 1 and 2 both involve a robbery at the 

same location, whereas Count 3 involves an alleged robbery at another location 

on the same date. And we would like to try the 1 and 2 together, and then try 3 

separately.” The trial court denied the motion. C.R. at 107; Supp. 2 R.R. at 4.

Before voir dire began on March 31, 2014, Appellant stated, “Your 

Honor, we are ready on Counts 1 and 2, but we’re going to announce not ready 

on Count 3 based upon our motion for severance. I understand the Court is 

probably going to make us go forward on all 3 counts.” 2 R.R. at 4. Appellant 

explained that he did not announce ready on Count 3 because he did not want 
15

to forfeit any appellate issues regarding his severance request. 2 R.R. at 5. The 

trial court again denied his request. C.R. at 107; 2 R.R. at 6.

Discussion

As in Coleman, the threshold issue in this case is the nature of 

Appellant’s motion. 788 SW2d at 371. Appellant requested that the offense 

alleged in Count 3 be severed from the offenses alleged in Counts 1 and 2. 

Supp. 2 R.R. at 3-4. He now contends the trial court erred in denying his 

motion because it resulted “in a joint trial for two separate robberies.” He seeks 

“two new trials – one for Counts One and Two related to Dollar General and 

the other for Count Three related to Wal-Mart.” Appellant’s Brief at 6.

Appellant does not provide the Court with any authority in support of his 

contention that he was entitled to a severance of one of the counts from the 

other two counts. Likewise, he also fails to provide the Court with any 

authority in support of his request for two new trials. See Tex. R. App. P. 

38.1(i). Appellant is essentially attempting to usurp the State’s right to join or 

consolidate offenses. See Nelson, 864 SW2d at 498; Mock, 848 SW2d at 219.

“Severance of the joined offenses is the only portion of the consolidation 

process over which the defendant has any control.” 6 Michael B. Charlton, 

Texas Practice: Texas Criminal Law § 3.4 at p.36 (2d ed. 2001).
16

Additionally, Appellant attempts to show that he was harmed by the 

denial of his motion by incorrectly treating the offenses alleged in the first two 

counts of the indictment as one offense. Appellant’s Brief at 6, 7, 9, 15, 18, 20, 

21, & 22. The allowable unit of prosecution for robbery is each victim. Ex 

parte Hawkins, 6 SW3d 554, 560 (Tex. Crim. App. 1999) (“Prosecuting the 

applicant twice for robbery did not violate the Double Jeopardy Clause of the 

Fifth Amendment because the allowable unit of prosecution for robbery is each 

victim, and he assaulted two victims in the course of committing theft.”); Ex 

parte Padron, 16 SW3d 31, 35 (Tex. App.-Houston [1st Dist.] 2000, pet. ref’d).

Thus, the State properly charged Appellant with two offenses for his conduct at 

the Dollar General.

If Appellant had requested a proper severance of all the charges, 

evidence of both of the offenses alleged in Counts 1 and 2 would have been 

admissible as same transaction contextual evidence in the separate trial of each 

offense. “Same transaction contextual evidence results when an extraneous 

matter is so intertwined with the State’s proof of the charged crime that 

avoiding reference to it would make the State’s case incomplete or difficult to 

understand.” Trevino, 228 SW3d 733; see also Tovar v. State, 165 SW3d 785, 

795 (Tex. App.-San Antonio 2005, no pet.) (no reversible error in failing to 

sever charges of producing sexual performance by a child and possession of 
17

child pornography); Rodriguez v. State, 90 SW3d 340, 358 (Tex. App.-El Paso 

2001, pet. ref’d) (no reversible error in failing to sever two counts of engaging 

in organized criminal activity); Dominguez v. State, 62 SW3d 203, 208 (Tex. 

App.-El Paso 2000, pet. ref’d) (no reversible error in failing to sever 

possession of controlled substance and failure to stop and render aid charges).4

Moreover, as Appellant notes in his brief, his defense consisted of 

challenging the State’s witnesses regarding their ability to identify him as the 

perpetrator. Appellant’s Brief at 21. “One of the main rationales for admitting 

extraneous-offense evidence is to prove the identity of the offender.” Segundo 

v. State, 270 SW3d 79, 88 (Tex. Crim. App. 2008). “To be admissible to show 

identity, an extraneous offense must be so similar to the offense charged that 

the offenses are marked as the accused’s handiwork.” Lane v. State, 933 SW2d 

504, 519 (Tex. Crim. App. 1996). “[S]ufficient similarity may be shown by 

proximity in time and place or by a common mode of committing the 

offenses.” Id. (emphasis in original). “The exactness [in similarity] that might 

be required of an offense committed at a more remote period of time might not 

necessarily be required for an offense committed within a very short period of 

time.” Johnson v. State, 68 SW3d 644, 651 (Tex. Crim. App. 2002) (“The 

 

4 A limiting instruction is not required when evidence is admitted as same 

transaction contextual evidence. Devoe v. State, 354 SW3d 457, 471 (Tex. 

Crim. App. 2011).
18

extraneous offenses were highly probative because they placed the primary 

offense in context of the scheme carried out that night and because they tended 

to prove appellant’s identity as the perpetrator.”). The fact that a defendant 

might have changed his clothing or appearance is not controlling. Ransom v. 

State, 503 SW2d 810, 813-814 (Tex. Crim. App. 1974). “Some dissimilarities 

between the charged crime and the extraneous offense do not automatically 

make the extraneous offense inadmissible.” Dickson v. State, 246 SW3d 733, 

743 (Tex. App.-Houston [14th Dist.] 2007, pet. ref’d) (evidence of extraneous 

aggravated robbery admitted to prove identity in aggravated robbery trial).

In Ransom, the appellant was convicted of robbery. Id. at 811. On 

appeal, he complained about the admission of an extraneous offense, another 

robbery, during the guilt-innocence phase of the trial. Id. The Court held that 

the extraneous offense was admissible to prove identity because “both offenses 

were robberies committed at gunpoint in Dallas three days apart, while 

appellant, identified as the perpetrator of both, was aided by a confederate.” Id. 

at 813; see also Lane, 933 SW2d at 519 (discussing Ransom).

In the instant case, the similarity of all three offenses is shown by 

proximity in time and place and by a common mode of committing the 

offenses. All three offenses occurred within about an hour of each other. All 

three offenses occurred in Corpus Christi. In all three offenses, Appellant 
19

accosted a female employee of a retail store with a kitchen knife. In all three 

offenses, Appellant told the victims he had a gun that he did not display. In all 

three offenses, Appellant left the store with a till or money box. In all three 

offenses, Appellant wore sunglasses and gloves. In all three offenses, 

Appellant was described as being calm. Thus, there are more similarities 

between the offenses in this case than those in Ransom.

Additionally, even Appellant acknowledges that “[t]he detergent/fabric 

softener and lighter/fire link between the two scenes certainly indicate a 

relationship between the two scenes . . . .” Appellant’s Brief at 17. “This is ‘the 

mark of Zorro’ mode of proving identity; it is a remarkably unusual fact, in 

which a single detail suffices to establish identity.” Segundo, 270 SW3d at 88

(appellant’s DNA found in both murder victims constituted his “calling card”); 

accord Peña v. State, 867 SW2d 97, 99 (Tex. App.-Corpus Christi 1993, pet. 

ref’d) (holding that repeated use of same vehicle in different burglaries 

constituted a “signature” characteristic). The use of detergent as a criminal 

instrument certainly seems to qualify as a remarkably unusual fact that 

constitutes a “signature” characteristic. As Appellant notes in his brief, “[t]he 

sheer existence of two similar crimes on the same day lessened the strength of 

the defense.” Appellant’s Brief at 21.
20

Appellant’s contention that this case “closely resembles” Llamas does 

not withstand scrutiny. Appellant’s Brief at 16. In Llamas, the appellant was 

detained and arrested after he was observed driving a pickup truck with 

obliterated identification numbers. Officers then inventoried the truck and 

discovered an envelope containing cocaine. Llamas v. State, 991 SW2d 64, 66 

(Tex. App.-Amarillo 1998), aff’d, 12 SW3d 469 (2000). The appellant was 

subsequently indicted for tampering with identification numbers and 

possession of cocaine by two separate indictments. On appeal, he contended 

that the trial court erred in consolidating the two charges for trial over his 

objection. Id. The Amarillo Court of Appeals and the Court of Criminal 

Appeals agreed. In upholding the judgment of the court of appeals, the Court 

of Criminal Appeals said, “Clearly, evidence as to the cocaine charge was 

admitted in this trial that would otherwise not be relevant to the possession of 

altered identification numbers and vice versa.” 12 SW3d at 472.

The Court of Criminal Appeals long ago explained why the cocaine 

possession charge should not have been prosecuted with the altered 

identification numbers charge:

A . . . rule that has often been stated by this Court 

is that the State is entitled to show the 

circumstances surrounding an arrest. However, 

this rule is restricted by the same test as any 

extraneous matter, that is, the evidence must be 

relevant to a material issue in the case and the 
21

probative value must outweigh the prejudicial 

value. Therefore, to simply state that something is 

admissible merely because it is a circumstance of 

the arrest is too broad a statement.

Couret v. State, 792 SW2d 106, 107 (Tex. Crim. App. 1990) (emphasis in 

original and citations omitted). In Couret, a hypodermic needle was found in 

the appellant’s possession at the time he was arrested for a burglary. Id. The 

Court held that the trial court erred in admitting evidence of the hypodermic 

needle at the appellant’s burglary trial. Id. at 108.

Appellant’s other arguments are equally unconvincing.

Though Appellant notes that one of the voir dire panel members 

appeared to have trouble with the fact that Appellant was charged with 

multiple offenses, Appellant’s Brief at 17-18; 2 R.R. at 124-125, that panel 

member did not serve on the jury. 2 R.R. at 169 & 178-179. She was also the 

only one of the eighty panel members who expressed any such reservation. 

And even if the offenses had been severed, the jury would have been permitted 

to consider evidence of the other two offenses when deliberating on one 

offense. See Werner, 412 SW3d at 551. 

Though Appellant also complains that one small portion of the jury 

charge may “have impressed upon the jury that the evidence of each crime 

overlapped where the actual evidence itself may not have,” Appellant’s Brief at 

18, Appellant did not object to the charge. Furthermore, when viewed in its 
22

entirety, the charge made it clear that Appellant was charged with three 

separate offenses that required three separate verdicts. C.R. at 65-76. And as 

noted above, the evidence of the three crimes did overlap. 

Appellant also complains about the prosecutor’s argument “linking the 

two crimes in order to emphasize proof beyond a reasonable doubt.” 

Appellant’s Brief at 20. As noted above, there were several links between the 

three crimes. See Werner, 412 SW3d at 551.

Though Appellant also contends that his strategy could have changed if 

a severance had been granted, Appellant’s Brief at 22, he does not state what 

other viable defense would have been available to him had a severance been 

granted. See Werner, 412 SW3d at 548 n.35; Scott, 235 SW3d at 261.

Finally, Appellant notes that his trial counsel announced that he was not 

ready on Count 3. Appellant’s Brief at 22. But his trial counsel explained that 

he was announcing not ready to avoid forfeiting any appellate issues regarding 

his severance motion. 2 R.R. at 4-5. A defendant is not entitled to a severance 

if he is not ready for trial. See Tex. Penal Code § 3.04(a). Because Appellant 

never requested a continuance, he never filed a sworn motion for continuance. 

Consequently, the issue is moot. See Blackshear v. State, 385 SW3d 589, 591 

(Tex. Crim. App. 2012).
23

` Appellant also fails to note that his sentences will be served 

concurrently because of the joinder of the offenses. See Tex. Penal Code § 

3.03(a); Werner, 412 SW3d at 551-552.

In conclusion, Appellant was not entitled to a severance of just one of 

the offenses alleged in the indictment. Moreover, a review of the entire record 

reveals that Appellant’s substantial rights were not affected by the denial of his 

motion.

Accordingly, Appellant’s issue should be overruled.

Prayer

For the foregoing reasons, the State respectfully requests that the 

judgment of the trial court be affirmed.5

 

5 As noted above, after finding that Appellant was a habitual felony offender, 

the jury assessed his punishment at imprisonment for 45 years and a fine of 

$1,000 for each offense. C.R. at 85-89. The judgment reflects the imposition 

of the fines. C. R. at 95. Section 12.42(d) of the Penal Code does not 

authorize the imposition of a fine. The Court may modify the trial court’s 

judgment by deleting the fine for each conviction. Tex. Code Crim. Proc. art. 

37.10(b); Tex. R. App. P. 43.2(b); Frias v. State, No. 03-12-00463-CR, 2014 

WL 3410592, at *10 (Tex. App.-Austin July 10, 2014, pet. ref’d) (mem. op., 

not designated for publication) (deleting fine assessed against habitual 

felony offender); Ramirez v. State, No. 04-09-00323-CR, 2010 WL 

4840495, at *2 (Tex. App.-San Antonio Nov. 24, 2010, pet. ref’d) (mem. 

op., not designated for publication) (same).
24

Respectfully submitted,

/s/ Adolfo Aguilo, Jr.

Adolfo Aguilo, Jr.

State Bar No. 00936750

Assistant District Attorney

105th Judicial District of Texas

901 Leopard, Room 206

Corpus Christi, Texas 78401

(361) 888-0410

(361) 888-0399 (fax)

adolfo.aguilo@co.nueces.tx.us

Rule 9.4 Certificate of Compliance

In compliance with Texas Rule of Appellate Procedure 9.4(i), I certify 

that the number of words in this brief, including those matters listed in Rule 

9.4(i)(1), is 6,363.

/s/ Adolfo Aguilo, Jr.

Adolfo Aguilo, Jr.
25

Certificate of Service

This is to certify that this brief was emailed to Appellant’s counsel, 

Danice L. Obregon (danice@obregonlaw.com), on February 2, 2015.

/s/ Adolfo Aguilo, Jr.

Adolfo Aguilo, Jr.