Llamas v. State

• Decision Date: 16 February 1999
• Citation: 12 S.W.3d 469
• Parties: (Tex.Crim.App. 1999) LARRY LLAMAS, Appellant v. THE STATE OF TEXAS NO. 1799-98
• Court: Texas Court of Criminal Appeals

Page 469

12 S.W.3d 469 (Tex.Crim.App. 1999)

LARRY LLAMAS, Appellant v. THE STATE OF TEXAS

NO. 1799-98

COURT OF CRIMINAL APPEALS OF TEXAS.

February 16, 1999.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS, HARRIS COUNTY

O P I N I O N

Price, J., delivered the opinion for a unanimous court.

Appellant was charged in separate indictments for possession of a motor vehicle with an altered vehicle identification number and possession of cocaine. At a pre-trial hearing, the trial court granted the State's motion to consolidate the two indictments for trial over appellant's objection. The jury found appellant not guilty of possession of a controlled substance and guilty of possession of a motor vehicle with obliterated identification numbers. After making findings of true as to the allegations in the two enhancement paragraphs, the trial court assessed appellant's punishment at confinement for twenty-five years in prison.

The Seventh Court of Appeals concluded that the trial court erred in overruling appellant's mandatory right to a severance. It held that under Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), the severance error in this case was not proven harmless. Llamas v. State, 991 S.W.2d 64, 70 (Tex. App.- Amarillo 1998). In so holding, the Court stated that error in denying appellant's mandatory right to sever pursuant to a legislative command is precisely the type of error contemplated by us in Cain, wherein we explained that some errors defy analysis by harmless error standards. Id. at 69. Accordingly, the judgment of the trial court was reversed and the case remanded for a new trial. Id. We granted the State's petition for discretionary review to consider whether the Court of Appeals erred in failing to conduct the appropriate harm analysis regarding the trial court's error in denying appellant's motion to sever.¹ We will affirm.

Initially, the State argues that the Court of Appeals ignored the mandates of Cain and Rule 44.2 of the Texas Rules of Appellate Procedure by relying on Warmowski v. State, 853 S.W.2d 575 (Tex. Crim. App. 1993), for the proposition that a trial judge's error in failing to grant a severance is not subject to a harm analysis. However, our reading of the Court of Appeals opinion does not lead us to this conclusion.

While a cursory examination of the Court of Appeals opinion might lead a reader to conclude that a harm analysis was foreclosed by the Court of Appeals in the present case, such a reading is incorrect. From the outset, the Court of Appeals recognized that a Rule 44.2(b) harm analysis must be conducted pursuant to Cain. Llamas, 991 S.W.2d at 68. Indeed, the Court first acknowledged that the proper standard of review to be used when determining if a substantial right is affected pursuant to a Rule 44.2(b) analysis is whether the error had a substantial or injurious effect or influence in determining the jury's verdict. Llamas, 991 S.W.2d at 68. (citing King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). In answering this inquiry, it gleaned guidance from our language in Warmowski regarding the importance of a defendant's right to severance:

[t]he legislature cannot have intended for an appellate court to second guess [a defendant's] discretion on a case-by-case basis by declaring the failure to grant his requested severance to be harmless beyond a reasonable doubt. . . . It would be anomalous to take away the benefit of that absolute discretion, by invoking Rule 81(b)(2) on appeal, while the defendant still risks the adverse consequences of consecutive sentences.

Warmowski v. State, 853 S.W.2d 575.

In Warmowski, we held that a trial court's failure to sever cases despite a defendant's objection to consolidating cases for trial was reversible error not subject to a harm analysis. Id. at 581. Four years later, in Cain, we held that except for certain federal constitutional errors labeled by the United States Supreme Court as structural, no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. Cain, 947 S.W.2d at 264. Consequently, the language in Warmowski indicating that severance error is never subject to a harm analysis is disavowed. However, Warmowski is still instructive regarding the importance of a defendant's right to severance and the concerns reviewing courts should examine when conducting a harm analysis.

Given our strong language in Warmowski, the Court of Appeals reasoned, "to hold that a mandatory right established by the state legislature can be ignored by trial judges simply because it is not a constitutional right, is to allow the judicial branch to ignore mandatory directives of the legislature." Llamas, 991 S.W.2d at 68. Based on this reasoning, the Court concluded that the trial court's error in denying appellant's request for severance affected a substantial right and was not one that must be disregarded under Rule 44.2(b). Id. So, while there is language in Warmowski that is contrary to Cain, the Court of Appeals did not rely on or follow that particular language.²

The Court of Appeals did not ignore the directives of Cain in this case. On the contrary, it determined that this is precisely the type of case that we were talking about in Cain when we said: "where error defies harm analysis or the data is insufficient to conduct harm analysis, the error will not be proven harmless." Llamas 991 at 68, (citing Cain v. State, 947 S.W.2d at 264). In Cain we explained that if concrete data necessary to conduct a harm analysis is absent, a harmless error test must nevertheless be conducted, and the absence of data is simply taken into account in determining whether or not the harmless error test is passed or failed. Cain, 947 S.W.2d at 264. When we stated in Cain that some errors may "defy" harm analysis we did not mean that a harm analysis need not be conducted. We meant simply that some errors will not be proven harmless because harm can never be determined due to the lack of data needed for analysis. This is precisely the conclusion that the Seventh Court of Appeals reached in the instant case.

While we agree with the Court of Appeal's interpretation of our language in Cain, we disagree with its determination that the record contained insufficient data to measure harm. This is not a case where the error defies harm analysis; everything in the court reporter's record is data from which a court can analyze harm. To judge the likelihood that harm occurred, appellate courts must consider everything in the record including all the evidence admitted...