NOS. 07-09-00026-CR, 07-09- 00027-CR, 07-09-00028-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 13, 2010

RODOLFO R. SO SA, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY; NOS. D-1-DC-06-100022, D-1- DC-06-300403, D- 1-DC-06-3004436 HONORABLE JON N. WISSER, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION
Appellant, Rodolfo Sosa, appeals Judgments of Conviction by Jury that found appellant guilty of five counts of indecency with a child by contact 1 and one count of indecency with a child by exposure. 2 The trial court then s entenced appellant to ten years incarceration in the In stitutional Division of the Te xas Department of Criminal Justice. By one issue, appellant appeals. We affirm.

1 See T EX

. P ENAL C ODE A NN . § 21.11(a)(1) (Vernon Supp. 2009).

2 See T EX

. P ENAL C ODE A NN . § 21.11(a)(2)(A).2 Background
Appellant was accused of indecency with a child based on conduct involving three boys ranging in age from eleven to thir teen. Appellant came into contact with these boys through his employment as a maintenance man at various apartment complexes and as a minist er of a church.
One of these boys, C.G., became friends with appellant after meeting him at church. C.G. described an incident in which appellant ca me up behind C.G. and hugged him while whispering into C.G.’s ear that he loved hi m. C.G. indicated that he could feel appellant’s penis on his buttocks and that he could te ll appellant was aroused. On two separate occasions, appell ant rubbed C.G.’s upper thigh, near C.G.’s crotch. C.G. also described an incident in which appellant took C.G. to an empty apartment, pulled down C.G.’s pants, touched C.G.’s genitals and buttocks, and masturbated in front of C.G. Following this , appellant then put C.G.’s penis in his mouth and, despite C.G.’s requests that appell ant stop, appellant continued until C.G. ejaculated.
Another of the boys, O.Z., also met appel lant at church. Appellant began giving O.Z. rides to and from church. O.Z. descri bed two instances when appellant rubbed his leg and told O.Z. that he loved him or car ed for him. On another occasion, appellant took O.Z. to an empty apartment and told O.Z. that the apar tment was where appellant and C.G. had sex. While in this apartment, appel lant attempted to kiss O.Z., but O.Z. moved his head. Finally, O.Z. described one occasion when appellant followed him into3 a storage closet at the church and hugged him fr om behind. O.Z. said that he could feel appellant’s penis through their clothes.
The final boy, J.B., descr ibed an incident when appel lant came to J.B.’s apartment to fix a cupboard. J.B. was alone in the apar tment. Appellant sat down on the couch and told J.B. to sit by him. When J.B. complied, appellant undid the drawstring on J.B.’s sweatpants and put hi s hands on J.B.’s inner thigh and penis.
Appellant was indicted fo r committing the offenses of indecency with a child by contact against each of the three boys and i ndecency with a child by exposure against C.G. Prior to trial, the State moved to co nsolidate all of the pending charges against appellant. Appellant moved to sever the trials, but this motion was denied by the trial court. Following trial, a jury found appellan t guilty of all charges, and the trial court sentenced appellant to ten years incarcerati on in each cause. Appellant then timely filed notice of appeal.
By one issue, appellant cont ends that the trial court e rred in denying appellant’s motion to sever the separate causes resu lting in unfair prejudice to appellant.

Standard of Review

A trial court’s denial of a defendant’s moti on for severance is reviewed for abuse of discretion. See Salazar v. State , 127 S.W.3d 355, 365 (Tex.App.--Houston [14th Dist.] 2004, pet. ref’d). A trial court abuses it s discretion when the trial court’s decision is arbitrary, unreasonable, and made without reference to guiding rules or principles. See Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim. App. 1991) (op. on reh’g).4 Law and Analysis
A defendant may be prosecuted in a single criminal acti on for all offenses arising out of the same crim inal episode. T EX

. P ENAL C ODE A NN . § 3.02(a) (Vernon 2003). 3 "Criminal episode" means t he commission of two or more offenses, regardless of whether the harm is directed toward or in flicted upon more than one person, if the offenses were committed pursuant to the same transaction or pursuant to two or more transactions that are connected to or constitute a common scheme or plan, or if the offenses are the repeated commission of the sa me or similar offenses. § 3.01 (Vernon 2003).
When two or more offenses have been jo ined for trial under section 3.02, the defendant has a right to severanc e of the offenses, except when the defendant is being prosecuted for an offense described by sect ion 3.03(b), in which case, severance is permitted only when the trial court determines that the defendant or the State would be unfairly prejudiced by joinder of the offe nses. § 3.04(a), (c) (Vernon 2003). The offenses described by section 3.03(b) incl ude indecency with a child under the age of seventeen years. § 3.03(b)(2)(A) (Vernon Supp. 2009); see § 21.11. There is no presumption that the jo inder of cases described by secti on 3.03(b) that were allegedly committed against different children is unfairly prejudicial. See Salazar , 127 S.W.3d at 365 (citing Diaz v. State , 125 S.W.3d 739, 742-43 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd.)). The burden to show how he woul d be unfairly prejudic ed by consolidation

3 Further references to provisions of the Texas Penal Code will be by reference to “section __” or “§ __.”5 rests with the defendant. See Lane v. State , 174 S.W.3d 376, 380 (Tex.App.--Houston [14th Dist.] 2005, pet. ref'd).
Initially, appellant seems to cont end that the facts and circumstances surrounding the allegations made in the present causes are so different that they do not constitute “the repeated commission of the sa me or similar offenses,” § 3.01, and, therefore, the trial court e rred in denying appellant’s mo tion to sever. Because appellant’s issue challenges t he denial of the motion to se ver, we must initially determine whether the trial court abused its discretion in denying the motion on the basis that the causes were not appropriate for consolidati on. Appellant attempts to distinguish adverse case law by highlighting the facts that these causes involved three separate victims that were not members of appellant’s fa mily, and the offenses were singular occurrences rather than recurrent. However, nothing in the case law cited by appellant establishes that any of these factors are required to establish that offenses are sufficiently similar to justify consolidatio n. After reviewing th e record, we conclude that these offenses were sufficiently similar to justify consolidati on. The similarities include: each of the three victims were in the same age range when assaulted by appellant, appellant met each of the three victims through hi s position of employment, and many of appellant’s statem ents and actions were consist ent with each child. As such, we cannot say that the trial court abused its discretion in denying appellant’s motion on the basis that the offenses were not sufficiently similar to justify joinder. See §§ 3.01, 3.02(a).6 However, even if causes under section 3. 03(b) are properly joined, severance is appropriate if the defendant or State would be unfairly prej udiced by the joinder. § 3.04(a), (c). Appellant contends that th e testimony of the victims, when taken separately, reveals flaws and inconsistencies that were masked by the consolidation of the cases. Further, appellant contends that the admission of the testimony from each of the victims in the same proceeding impermi ssibly bolstered the testimony of each victim.
As previously stated, when the charged offenses are offenses described by section 3.03(b), there is no presumption th at the joinder of cases allegedly committed against different children is unfairly prejudicial. See Salazar , 127 S.W.3d at 365. Additionally, it is well-established that ev idence of other crimes may be admitted in a case if it rebuts a de fensive theory. See Moses v. State , 105 S.W3d 622, 627 (Tex.Crim.App. 2003). Appella nt’s defensive theories at tr ial primarily consisted of denying that he committed the o ffenses and claiming that t he victims’ testimony was inconsistent or coached. As such, even if the severance had been granted, it is likely that, in each case, the testimony of the other victims would have been admissible to refute the defensive theories that the victims’ testimony is unr eliable or was the result of coaching. See Salazar , 127 S.W.3d at 365. Therefore, we conclude that the trial court could have reasonably found that the joinder of the cases was not unfairly prejudicial to appellant. Id . at 365-66. Consequently, the trial c ourt did not abuse its discretion in denying appellant’s motion for severance. We overrule appellant’s issue.7 Conclusion
For the foregoing reasons, we overrule appellant’s sole appellate issue and affirm the judgment of the trial court.

Mackey K. Hancock Justice

Do not publish.