NO. 07-02-0358-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B NOVEMBER 12, 2004

______________________________ MARTIN GARCIA, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 22ND DIST RICT COURT OF DEAF SMI TH COUNT Y; NO. CR-01D -058; HONOR ABLE H. BRY

AN POFF, JR ., JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBE LL, JJ.
OPINION
In four issues, appel lant Marti n Garcia chal lenges hisconvicti on of capital murder and the resulti ng sentence o f lif e imprisonment i n the Texas Dep artment of Crimi nal Justice–Insti tutional Divis ion. Appellant and his co-defendant

Bryan Par rack wer

e charged in a single indictment for the felony offense of capital mur der. Ap pellant filed a pr e-trial motion requesting severance of his trial from Parrack’s. After a hearing, the motion was-2-

d enied, the case proce eded to jury trial and appe llant was convicted of cap ital murder

. Appellant

reurged themotion to sever during trial. He presents three issues relating to the trial court’s r

efusal to sever

his trial from Parrack’ s, and a fourth issu e asserting that the evid ence was leg ally

and fact ually

insuffi cient

to sus tain hi s conv icti on. We wil l affir m.
On February

25, 2001, at approx imately 10:20p.m., Tony Gar cia, a ssistan t manager of the Thriftway

East grocery stor

e in Hereford, Texas, was shot and kil led as he left the store after c losing with the day’s cas h deposits. When officers arri ved at the scene, they found Tony Garcia slumped over in the driver’s seat of hi s vehicl e, which w as sitting in the parking l ot with i ts engine running. He had been shot threetimes, once in the chest,
once in his ri ght side, and once in his legs, w here a bullet e ntered and exited his right leg, lodging in his left leg. H e also had another wound to thechest caused w hen the jacketi ng of the bullet that

entered his c hest separated from t he bullet and e ntered sep arat ely. Autopsy results i ndicated that one of thewounds in his chest was the probable cause of death. The bullets recovered from wounds in his chest and side were of .38 caliber class, while his leg w

ou n ds were caused by a si ngle .22 cal iber bullet. The store’s money bag
was w ith hi m. Sufficiency of Evidence App ellant’s fourth issue ar gues the ev idence waslegally and factually

insuf ficien t to convict him of capital murder. W e begin with the fourth issue because dispo sition of it requires discussion of the evidence presen ted at trial.1 The indictment re ad: “The Grand Jur ors . . . present . . . that Bryan Ray Parrack and Martin Benz Garcia

. . . on or about the 25 th day of Februar y, 2001, and anterior to the presen tme nt of this indictment, in the County and State aforesaid, di d then and there, intentionally cause the death of an i ndividual, namely Tony Garcia, by

shooting hi m with a gun while in the course of attempting to com mit the offense of Robbery of Tony Garcia.”

2 The jury c harge w ith respect toeach defendant contained language consistent w ith Penal Code sections 7.01(a) and 7.02 (a)(2), concerning parties and c riminal res ponsibility for another’s co nduct. -3- To find appellant gui lty of capital murder , as defined in the charge to thejury, t he jury was req uired to find that he intenti onally cau sed the death of Tony Garci a while i n the
course of a ttem ptin g to co mmi t the off ense of ro bbe ry. 1 Appella nt’s argu ment on evidentiarysufficiency is based on the prem ise that he co uld be found guil ty of capital murder only if his

co-defendant kil led Tony Garc ia in furtheran ce of a c onspiracy with appellant. Appellant argues there was no evidence that his co- defendant Parrack caused the death of the vic

tim, and appellant

therefore could n ot be g ui lty of capital murder. Appellant’s argument isfaulty. It fai ls to consid er the complete jury charge, which read, in relevant pa rt: “Now, if you find from the f rom [sic] evidence bey ond a reasonable do ubt that on or about February

25, 2001, in Deaf Smith Cou nty, Texas , the defendant, Martin Garcia, did intentionally cause the death of Tony Gar cia by sho oting him with a g un, while said defendant was then and there i n the course of attempting to co mmi t the of [ sic] r obb ery ofTon y Garci a ofhis pr ope rty, then you wi ll find the defendant g uilty of capi tal murder; . . .”
The charge cont inued with an alternate theor y wher eby appellant

could be found guilty

of capital murder if his co-defendant intenti onally sho t Tony Garc ia, intending to kill him pursuant to a conspir

acy between appellant

and his co-defendant. 2 The jury thus could have found appellant gui lty under the charge if th ey determined either he intentio nally-4-

caused the death of Tony Gar cia by sho oting him i n the course of attempt ing to commit a robb ery, or that Parrack did so and appellant was criminally responsible for the action. The verdictrendered by

the jury s tates, “We, the Jury find t he defendant, Martin Garcia, g uilty of Capital Mu rder as all eged in the indictment.“ The verdict will be upheld if the evidence is sufficient under ei ther of the altern ative theor ies. See Rabbani v. S tate , 847 S.W.2d 555, 558 (Tex.Crim.App. 19 92) (general verdict of guilty will be upheld when evidence is sufficient under any of the theories submitted), cert. denied, 509 U.S. 926, 113S. Ct. 3047, 125 L. Ed 2d 731 (1993 ).
In reviewing the legal sufficiencyof the evidence, we look a t all the evidence i n the light most favorable to the ve rdict to de term ine wh ethe r any ra tion al tri er offac t cou ld ha ve found the essential elements of the offense beyond a reasonable do u bt. Jackso n v. Virginia , 443 U.S. 307, 319, 99 S. Ct . 2781, 2789, 61 L. Ed. 2d 560, 573 (1979) ; Griffin v. State , 614 S.W.2d 155, 159 (Tex.Crim. App. 1981). The stan da rd fo r legal sufficiency review “gives full play” to the jur y’s res ponsibility

“fairly to resolve conflicts in the t esti mon y, to weigh the evidence, and to draw reasonable in feren ces from basic facts to ultimate facts.” Jackson , 443 U.S. at 319; Sanders v. Stat e , 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a re view ofthe re cord for f actu al su ff icien cy, we consi der all the ev idence in a neutral light, and will set aside the verdi ct if the evi dence supporting it, either (1) standing alone or (2) w hen weig hed against t he contrar y evid ence, is too w

eak to establi sh the elements of

the offense beyond a reasonable doubt . The analysis is to answer the single ultimate quest ion: considering all the evidence in a neutral light, was the jury rationally justified in finding appell ant guilty beyond a reas onable doubt? See Zuniga v. State , 1443 Parrack w as a former Thriftw

ay employee. -5- S.W.3d 4 77, 481 (Tex.C r.App. 2004); Goodman v. S tate , 66 S.W.3d 283, 28 5 (Tex.Cri m.App. 2001). A proper appellate f actual sufficiency revie w must include dis cussion of the most important and relevant evidence th at the appellant c laim s undermines the jury ’s verdi ct. See Sims v. State , 99 S.W.3d 600, 603-04 (Tex .Crim.App. 2003).
The State presented the te stimony of appellant’s brother Jose Garcia. Hetestified thatappellant, pri or to the day of the shooting, told him appell ant and P arrack were planning to rob the Thri ftway East grocery store. 3 Jose further testified that theday of the shooting appellant described how he and Parrack planned to carry out the robbery. Jose stated, “He told me Pa rrack was going to be across the street on thebuilding and he was going to shoo t the ma nager in th e legs and Martin was goin g to come fro m across the street and get the money.” He testified appellant lef t their home with Parrack. Later that night Jose wasawakened by appellant. Jose testifie d, “I woke up, I don’t know what time itwas, my

brother came into the room , he told me that he shot Tony and I asked him i f he had killed hi m and he said I don’ t know, b ut he ha d seen Tony sl ump over the s teering wheel and the car took off in revers e and that he ran up to the car and tried opening the door but it wouldn’t open so he took of f.”
Jose also testified that a few days after theshooting appel lant had a black handg un, and it wasthe gun with which he had shot the victim. Appellant asked Jose what he should do with the gun. Jose adv ised him to g et rid of it.4 He testified they “might or

might not” have been fired from the weapon admi tted as State’s ex hibit 16. Fullerton’ s writ ten report, al so admitted into evidence, s tates: “The copper-jacketand copper-ja cketed bullet [removed from the victim’ s body] are.38 caliber and were fired fr

om a barrel hav ing polygonal rifli ng wit h six la nds and grooves with a -6- The night of the shooting, individuals near the scen e of the crime heard gunshots. Ahole in the w indshield of thevictim’s vehicle, a shattered driver’s-side window and glass in the interior

of the vehicl e indicated shot s had been fired in to the vehic le. Rodney Tuca y, M.D., who performed an autopsy on th e victim, testified that the victim had one wound in his left lateral c hest, two w ounds in his right upper c hest, caused w hen a bullet and i ts copper jacket se parate d afte r being f ired fro m a gun, a nd wound s in both legs caused by
a single .2 2 caliber bul let. Dr. Tucay testified that th e wound in t he right uppe r chest, caused by

the bullet, was the likely cause of death. He opined that the leg wounds would not have been lif e-threa tening.
I nvestig ators found two spent .357 Sig cartridge casings and two live .357 Sig cartr idges in the Thriftway parking l ot. A police search of the barn located behind the residence occupied by appellant and Jos e produced a black Glock model 31 handgun (admitted as State’s exh ibi t 16) wrapped in plastic on the barn’s rafters. A live .357 Sig cartridge was found on the barn floor. Aaro n Fullerton, a firearms examiner with the Texas Department

of Public Safety crime laborat ory, test ified that

the two spent .357 Sig cartridge casings found at t he scene of the shooting w ere fired from the g un found in the barn. Fullerton identified the bullets removed from the chest ofthe victim as .38 caliber-class bullets, but could not say whether or

not they w

ere fired from that pa rticular gun. 4clockwise rotation, w hich are the s ame class char acteristics as the submitted .3 57 Sig caliber pistol; however, the copper-jacket and copper-jackete d bullet could not be identified or eliminated as having been fired from the submit ted .357 Sig caliber pistol.” Testimony also established that .357 caliber cartridges are included within the .38 caliber class. -7- Justin Tarr, a former co-worker of Parrack’s testified th at, within weeks before the shooti ng, Parrack showed him a .357 Sig Glock handgun he owned. Tarr identified Stat e’s exhibit16 as being like the gun Parr ack showed him. A magaz ine fitting a Glock model 31
was found in Parrack’s pickup truck during a police search a few days foll owi ng the shooting. I t contained ten l ive cart ridges.
Charles Peters, a forens ic scienti st for the FBI, testified that an analy sis of the content of one of

the lead bullets removed from the victim revealed that it was “analytically indisting uishable” from th e two liv e .35 7 Sig c artri dges fou nd at the s cene and t he live cartridge found in the barn be hind appellant’s residence, ind ic ating t hat all those bu llets
were manufactured from the same mol ten pot of lead. The lead content of the other bullet taken from th e victim’ s chest was different. Peters testified, thoug h, that it isnot
uncommon for bulletsoriginat ing wi th different pours of le ad to end up in the same box of shells.
Police also found three s pent .22 shell casi ngs on the ro of of a building across the street from the Thriftway

and a rope hangi ng toward theground from an ex haust pipe on the roof of that buildin g. The rope had cut throug h the tin at theedg e of t he bu ild ing ’s r oof. Parrack’s former girl friend testified s he was w ith him on the afternoon of the shooting, and
as t hey drov e near the Thriftw ay he said, “I’m going to ‘hit’ ( or ‘get’) that mother f’er tonight,” i ndicating hewould be ac ross the str eet from the Thriftway . Peters testi fied that-8-

the lead content of

the .22 bullet found in the vi ctim’s leg was indi stinguisha ble from that of .22 cartri dges found in Parrack’ s pickup truck and in the residence app ellant and his brother Jose s hared.
As noted, appellant’s evidentiar y insufficienc

y argument

on appeal focuseson the alte rnat ive theory i ncluded i n the jury charge, that

Parrack fir

ed the shots that killed the victim and appellant w

as criminal ly respon sible for that action. Appel lantargues ther e was no e vide nce connecting the fata l bullets recovered from the victim’s body with Parrack. The thrust of the State’s case and evidence was that appel lantwas the s hooter of the fatal shots. In his only

specific conten tion addressing that theory of the ev idence, appellan t argues the State failed to show that the bullets causing the victim’s death were fired from State’s exhibit 1 6 , the Glo ck pistol l ocated in the bar n behind appellant ’s residence. As noted, appellant’s brother Jose testif ied the gun appellant displa yed t o him was t he gun appellant

used to shoot the victim. He described th e we apon as a black handgun, and from the e vi dence we h ave r ecite d the j ury reason ably could infer t hat it

was the sam e weapon police found in t he barn. DPS firearms examiner F ullerton test ified the gun found in the barn fired the two spent .357 Sig shell casi ngs found at the scene of the sho oting. Appellant’s co-defendant Pa rrack presented his father as a witness to support his alibi defense. Throughout trial, appel lant ch allenged the c redibilit y of wit nesses and exhibits, but he presented n o testimony o r other ev idence on his ow n beha lf . Evidence contraryto the ver

dict include d testimony thata red car w

as seen circ ling the v ictim’s car atThriftway

East and leav ing the scene of the shootin g shortly after gunshots were heard by witness es nearby. Investig ators testified the indiv iduals in the red c ar were ar rested,-9-

que stioned a nd released after police concl uded they had arrived at the scene after the gunshots. Too, Parrack’s father testified he sold a Glock model 31 at a gun show in December

2000. His te stimony w as contradi cted by that of a policeman. Jos e testified thatParrack pi cked appellant up at their home about 7:00 on the evening of the shootin g. Daniel Fangman testi fied he spent the evening wi th Jose driv ing around H ereford, and that he picked Jose u p around 5:00 p.m. Such conflic ts in the ev idence wer e for the jury

to resolve. Having review

ed all the evid ence, and looking at the evidence in the light most favorable to the ver

dict, we conclude a rational jury could have found beyond a reason able doubtappellant was the shooter an d committed the essential el ements of capital murder. Further, view ing all t he evidence i n a neutral li ght favori ng neither t he State nor appellant,
we also conclude the ju ry w as rati onally j ustified in findin g appellant g uilty bey ond a
rea son able doubt. The evi dence supporting appellant’s g uilt on the theor y he was

the shooter of the fatal bullets is neither too weak standi ng alone to su pport the finding of guilt beyond a reasonable doubt nor undermined by contrary evidence so strong that his guilt cannotbe proven bey

ond a reasonable do ubt. See Zuniga , 144 S.W.3d at 481 ; G riffin , 614 S.W .2d at 159. Our conclusions ma ke it unnece ssary that we consider appellant’s evidentiar

ys uff icien cy argu men t dire cted at th e alt erna tive t heo ry sub mitt ed to the j ury. See Guevara v. St

ate , N o . 0 4 2 4
- 0 3 , 2 0 0 4 WL 2347793, at *5 (Tex .Crim.App., O ctober 20, 2004). The evidence is both legally and factuall y sufficien t to support the jury’sgeneral verdict. Appellant’sfourth issue i s overru led.-10- Denial of M

otion to Sever
Atthe hearing on appellant’s pretr ial mo tion to sever his tri al from that of his codefendantand the similar mot ion filed by Parrack, both def endants argued that the ir defenses were antag onistic and mutua lly exclusive. Pa rrack’s trial couns el and an investig ator

hired by appellant testi fied. The investi gator testi fied that the vi ctim was wounded by two differe n t types of bull ets and because w ounds caused by

one caliber bullet were in the victi m’s legs an d wounds from a diffe rent caliber were to the victim’s chest, there could be a differen ce in in tent of the shooters. He also test ified that the evidence indicated one i ndividual was the “mastermind”of the plan to shoot and rob Tony Garcia w hile others w

ere solici ted to help.
Atto rneys for both defendants decl ined to discl ose their intended defenses to the court. After the motion to sever was denied, the trial court judge stated that should evide nce du ring tri al indicate s everance w as proper, he w

ould reconsid er the motion. Motions to se ver are g overned by Texas Code of Criminal Proced ure articl e 36.09:
Two or more defendants who ar e jointly or separatel y indicted or complained against for thesame offen se or a ny offen se gr owin g out of the sa me transaction may be, in the dis cretion of the court, tried jointly or separate ly as to one or more defendants; prov i ded that in any event either

defendant maytestify for th e other or on beha lf of the state; and provid ed further, that in cases in w hich, upon timel y motion to s ever, and ev idence introduced thereon, i t is made known to the court that there is a previous adm issible convicti on against one d efendant or that a joint tri al would b e prejudici al to any defendant, th e court shall order a severance as to the defen dant whose joint trial would pr

ejudice the other

defendant or defendants. Tex. Crim Proc. Code Ann. art. 36.09 ( Verno n 1981).-11-

In appellant’s fir

st point of erro r, he contends t hatthe failure of the trial court to g rant his motion to sever violated his due process rights u nder the Fourte enth Amendment to the United States Consti tution and Arti cle 1, Sectio n 19 of the Texas Const itution by impermissibly shifting the burden of proof from the pros ecution to appell ant. Appellant here contends that

Code of Criminal Pr

ocedure artic le 36.09 is unc onstitutional on its face. The motion to sever presented by appellant to the trial court, however, alleged: “A joint trial will be prejudicial to the defend ant in that the State will present evidence adm issible only against co-defendant th at will confuse the jury and make it impossible to render a fair and impartial verdict. Also, the joint tria l is prejudicial to the defenda nt due to the adverse position of the joint defendants for cing defendant to defend himself against both the State and the co-defen dant.”
As noted, appellant reasserted hi s motion to sever sever al times duri ng trial as evidence was admitted. At no time, how ever, did appellant prese nt the specific objection asserted in his firs t issue to the trial judg e and afford him an opportunit y to ruleon it. See Saldanov. State , 70 S.W.3d 873, 886-87 (Tex.Cr .App. 2002) ; see Tex. R. App. P. 33.1(a). The fail ure t o tim ely and spe cific ally objec t at tr ial ma y cau se forfei ture e ven of some constitutional rights. Id . at 887, 889; see Jenkins v . State , 9 1 2 S

. W. 2d 7 93, 808 (Tex.Cri m.App. 1993) (op. on reh’g). See generally Marin v. St ate , 851 S.W.2d 275, 279 (Tex.Cri m.App. 1993); Ex parte Alakayi , 102 S.W.3d 426, 434-35 (Tex.App.–Ho uston [14 th Dist.] 2003, pet. ref’d)

(due processviolati on complaint not pr eserved). We agree with the State that appellant’ s due process challenge tothe constitutionality of article 36.0 9 is not exempt from the re quirement that it first be pr

esented to the tr ial court, and may not be-12-

raised for the first ti me on appeal. See Webb v. State , 899 S.W.2d 814, 817-18 (Tex.App.–Waco 1995, pet. ref’d) (challeng e to constitutionality of statute on vagueness grounds not permitted for first time on appeal ). Appellant’ s first iss ue on appeal does not comport with hi s trial obj ection, Ibarra v. Sta te , 11 S.W.3d 189, 197 (Tex.C rim.App. 1999) ; Curry v. State , 910 S.W.2d 490, 495 (Tex.Crim.App. 1995); see Tex. R. App. P. 33.1(a)(1), and presents nothi ng for our re view. The first iss ue is overruled. Appellant

in his second i ssue contends that the f ailure of the trial court to grant his
m otion for severance denied him the right to cross-examine the witnesses against him during trial, i n violati on of his rig hts guaranteed by the Six th and Fourteenth Amendments of the United States Constituti on and under Arti cle I, Secti on 10 of the Texas C onstitution. He here contendsarticle 36. 09 is unconsti tutional as appl ied. We overrule the is sue, for several reasons. F irst, li ke his first issue, it w as not preserv

ed for review. Tex. R. App. P. 33.1(a)(1)

. No challeng e to the constit utionality of article 36.09as applied, or contention thatappellant’s constitutional right ofconfrontation was being denied h im because of his joint trial w ith Parrack , was pre sented to t he trial court. See Saldano , 70 S.W.3d at 889; Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim. App. 1990); McGowan v. State , 938 S.W.2d 732, 741 (Tex.A pp.–Houston [14 th Dist.] 1997) , aff’d on other grounds sub. nom. , Weightmanv. State , 975 S.W.2d 621 (Tex.Crim.App. 1998). Secondly , the record d oes not support appellant’ s cont ention. Appell ant argues th at because of the joi nt trial he w as denied his rig ht to confront and cr oss-examin e his co-d efe nda nt, wh o cho se no t to t esti fy. He argues that he w as h ampered in presenting his def ense due to his inability to crossexamine Parrack r

egarding evidence found in his possession. A ppellant also contends that5 We n ote Crawford v. Washi ngton was decided after the complet ion of briefing in this case. -13- he was required to defend himself against all e gations of hisco-defendant. The confrontation clause of the Sixth Ame ndmen t, made applica ble to th e state s through the Fourteenth Amendment, Pointer v. Texas , 38 0 U.S. 400, 406, 85S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (196 5), guarantees the right of an accuse d to confront and crossexamine witne sses who te stif y a gainst him in court or whose testimonial out-of -court statements are admitted into ev idence agains t him. See Crawford v. Washington , 124 S. Ct. 1354, 158 L. Ed 2d 177, 72 U.S.L.W . 4229 (2004). 5 Appellant re lies on Cruz v. New York , 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 162 (1987), and Chavez v. State , 6 S.W.3d 56 (Tex.App.–San Antonio 1999, pet. ref ’d) to emphasize the importance of a defend ant’s right to confront

and c ross-examine a co-defendant w hen out-of-court statements of the nontestifying co-defendant have been admitted into ev idence. These cases , h oweve r, invol ve a nontestifying co-defend ant’s confessi on that incri minates the other defendant. Here, there was

not a confession. The only testimony presented whereby Bryan Parrack implicated appellant as a pa rticipant in th e pla nne d rob bery wa s given by Par rack’ s exgirlfrie nd, and that testimony was gi ven outside the presence of the jury. No viol ation of appellant’s right of conf rontation appears.
The State perceives appellant’s second issue to present the contention the j oint trial prejudiced his defense because it prohibited him from calli ng his co- defendantParrackto test ify. The State notes that cases discu ssing pre

judice from the deni al of a motion for
severance based on the defendant’sclaimed r igh t to call a co-defendant to testify as a-14-

witness have required the defendan t to demonstrate, am ong other requisites, that the codefendantwill in fact testify at a separate trial. See, e.g., Lacy v. State , 901 S.W.2d 518, 520 (Tex.App .–T yl er 1995, no pet.) . Appellant made nosuch show ing. To the deg ree appellant’s second issue present s such a contention, the n, it fails. Ap pellant’s se cond issue is overruled.
In appellant’s t hird issue he argues that the trial court abused i ts discreti on in failing to grant hismotion for severance. Ar ticl e 36. 09 m and ates sever ance if evi den ce sh ows thata defendant’s joint

trial would pr

ejudice the other

defendant or defendants. See Davila
v. State , 4 S.W.3d 844 , 84 6-47 (Tex.App. –Eastland 1999, no pe t.); Silva v. Sta te , 933 S.W.2d 715, 718-19 (Tex.Ap p.–San Antonio 19 96, no pet.). To show an abus e of discretion, the proponent for s everance bear s a heavy

burden and must s how he w as clearlyprejudiced by the trial court’s failure to grant a s everance. Haggerty v. State , 825 S.W.2d 545, 548 (Tex.App.–Houston [ 1 st Dist.] 1992, no pet.). Appellant

contends the joi nt trial was prejudicial to him due to the adverse position of the joint defendants, forcing appellant to defend himself against both the St ate and his co-defendant. Severance maybe granted on the basis of conflic ting defenses, i f the codefendant ’s positions are mutually exclusive in the sense that th e jury, i n ord er to belie ve the core of one defense, must nece ssarily disbelieve the core of the other

. Mendoza v. State , 61 S. W.3d 498, 502 (Tex.App.–San Antonio 200 1), aff’d on other grounds , 88 S.W .3d 236 (Tex.Cri m.App. 2002); see Silva , 933 S.W.2d at 719. Proof of differing degrees of culpability

will not suffice. Davila , 4 S.W.3d at 847. Moreov er, to be entit led-15-

to severance based on ant agonistic defenses, a defendant “must show by offer of proof
or otherwis e what hisdefense would be if he were not being tried with his co-defendant.” Id ., citing Calverley

v. State , 511 S.W.2d 60, 62 (Tex.Cri m.App. 1974), overruled on other grounds , Moosavi v. State , 711 S.W .2d 58 (Tex.Crim.App. 1986 ).
In Silva , on which appellant elsewhere relies, th e defendant Silvapresented an ali bi defense at trial, contending he w as not at the cr ime scene and the State’s wi tness who identified him as being there wasmistaken. 933 S. W.2d at 718. His codefendant Lemos testified at trial, admitting that both he and Silv

a were pr

esentand identifyi ng Silva as the trigger man. The court found error in the trial court’s denial of Silva’s pre-trial severance motio n, noting that evidence of the conflicting positions pr esented to the cour

t at the hearing on the motion appri sed the court t hat Silva would be prejudiced because if the jury
were to believe Lemos’s story that Silva was the triggerman, it would necessaril y have to disbelieve Silva’ s alibi defense. Id . at 719.
Atrial court has a continuing duty to or der a sever

ance after trial begins upon a showi ng of sufficient prejudi ce. Aguilar v. S tate , 26 S.W .3d 901, 909 (Tex.Cr im.App

. 2000). A motion to sever bas e d on unfair prejudice is “timely” if made at the first opportunity

or as soon as the grounds for prejudi ce beco me a ppa rent or sho uld h ave become apparent, thus p roviding the trial court an opportunity to rule on the potent ially prejudicial evidence at

the time it i s introduced. Id . at 910.
The testimony of the investigator and Parrack’s counsel duri ng the pretrial hearing
on severance did not demonstrate that the defense s of the two defenda nts were mutually6 On appeal, appellant also argues that had t here been sever ed tr ials h e woul d have attacked Parr

ack’s alib i. No such contention was made to the tri al court. -16- exclusiv e. Neither defendant was w illing to put on evi dence of h is anticipated defense. The trial cour

t did not abuse i ts discreti on by denying the pretrial motion. Se e M en do za , 61 S.W.3d at 502; King v. State , 17 S.W.3d 7, 17 (Tex.App.–Houston [14 th Dist.] 2000, pet. ref’d); Davila , 4 S.W.3d at 847; Silva , 993 S.W.2d at 719.
Neither defendant testified at trial. Appellant’s defense challenged, through crossexamination, th e State’ s evidence that he was involved in the shooti ng. As noted, he presented no testimony or other ev idence on his ow n beha lf. As a lso noted, Parrack asserted an alibi defense. Parrack’s father testi fied tha t his son had been ho me at th e time the shooting o ccurred. 6 The father did not i mplicate appell ant. Appellant complai ns of statements an d cross-ex amination by Parrack’scounsel that he contends were des igned to cas t blameon him and deflect i t from Parrack. We agree the record reflects an eff ort by Parrack’s co unsel to impli cate Jose as thesecond participant

in the attempte d rob bery. Portions of hi s cross-ex amination of Jose can be
seen as part of that

effort. He also attacked Jose’ s alibi and hi s credibil ity duri ng closing
ar gument

and argued that

evidence poi nted to Jose rat her than Parra ck. Appe llant , though, made a simila r a ttack on Jose’ s credibil ity, ali bi and characte r during closing
ar gument, argu ing to the j ury that th e case agains t him “boils down to” w hether they believed Jose’s testimony. Appellant’s brief on appeal points to six occasions during trial
on which appellant again urged the motion to sever. Assumin g, w ithout decidin g, that appellant’s reurg ing of the m otio n was t imel y, based on the prej udice asserte d at the time-17-

of the reurgi ng, see Aguilar , 26 S.W.3d at 909-10, on none of those occasions can we say the evidence demons trated that the j ury, in o rder to beli eve the core of one defense, must necessarilydis b elieve the core of the other. See Aguilar v . State , 39 S.W.3d 700, 703 (Tex.App.–Corpus Christi 2001, pet. ref’d) (on remand); Silva , 993 S.W.2d at 719. Appellant

asserts the failure of the tri al court to g ive a li miting instruct ion with respect to cer

tain ev idenceas an a dditi onal g round of preju dice fr om t he join t trial. Appellant’s position is that evidence admissible only against Parrack was available for the jury to consider in convic

ting appell ant. When evidence whic h is admissi ble as to one par ty
or for one purpose but no t admissible as to another party fo r another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105(a). Appellant

refers to six

instancesin whic h he requested butwas denied an instructi on thatspecific ev idence wasnot to be con si dered against him. Specifical ly, appell ant requested such an instructi on in regar d to Justin Tarr

’s testimony

that Parrack showed him
a .357 Sig Glock handgun that looked like State’s ex hibit 16. Appellant als o requested t he
same instructi on for evidenceseized w hen Parrack’ s home and vehi cle wer e searched. Th is evidence consisted of pictures of items found in Parrack’s pickup, inclu ding a gu n magazinethat fit State’s exhibit 16. He also requested the instruct ion when the audiotape of a convers ation between Parrack’sfather and a police officer w as received as evidence. Appellant also refers to the court’s refusal to give the same limiting instruction in the jury charge.-18-

The trial cour

t’s denial of appel lant’s req uested limiti ng instruc tions does not demonstrate prejudice from t he joint tri al. “The key to this claim of prejudice is that evidence would be admissible in a joint tri al that woul d not be admitted i n an indivi dual trial. ” 43 Georg e E. Dix & Robert O. D awson, Texas Practice: Criminal Practice and P rocedure § 33.44 (2001), citing McWilliam s v. State , 496 S.W.2d 630 (Tex.Crim.App. 19 73) . We see
no reas on why t he evi den ce f or whic h app ella nt re ques ted a limit ing in stru ctio n wo uld b e inadmissible if he were tried indiv idually. Appellant’sthird iss ue is overruled. Having overrul ed appellant’s issues, we affirm the judgment of the trial cour t.

James T. Campbell Justice

Do not publish

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