Robinson v. State
| Decision Date | 10 December 1969 |
| Docket Number | No. 42363,42363 |
| Citation | 449 S.W.2d 239 |
| Parties | Ollie B. ROBINSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Donald D. Koons, Neal Wheeler, Dallas, for appellant.
Henry Wade, Dist. Atty., John Tolle, Malcolm Dade, Joe K. Hendley, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim Vollers, State's Atty., Austin, for the State.
The offense is burglary with intent to commit theft; the punishment, 12 years.
The appellant Robinson and his co-defendant, Robert Lee Johnson, were separately indicted for the same offense of burglary, but each was convicted at a joint trial. This appeal is that of the appellant Robinson alone. As to the companion case, see Johnson v. State, Tex.Cr.App., 449 S.W.2d 237, this day decided.
At the outset the appellant contends the trial court erred in refusing to grant his motion for severance.
In said motion he alleged that the co-defendant Johnson had a prior felony conviction and facts concerning Johnson's participation in the alleged offense would prove harmful to him; that his defense would be inconsistent with that of his co-defendant and a joint trial would be prejudicial to him.
No evidence was offered in support of such motion filed on the day the trial commenced. At the time the motion was presented and refused there was no showing that the trial court was apprised of the nature of the prior felony conviction referred to in the motion or of the alleged inconsistent defenses. No prior convictions were alleged for enhancement against Johnson. There was a prior conviction for burglary alleged for enhancement against the appellant Robinson, but it was abandoned by the State prior to trial.
Article 36.09, Vernon's Ann.C.C.P., provides as follows:
'Two or more defendants who are jointly or separately indicted or complained against for the same offense or an offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant for any reason, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.'
Under this statute severance is no longer a matter of right but rests within the sound discretion of the trial judge. Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807. In the absence of a motion for severance or showing of prejudice there is no error in consolidating the trial of two or more defendants. Beeson v. State, Tex.Cr.App., 422 S.W.2d 726.
Even if it can be argued that appellant's motion was timely presented, 1 no evidence was offered in support thereof as expressly required by Article 36.09, supra, and for this reason alone no error is presented.
Nevertheless, appellant urges that when two co-defendants are tried together, each having admissible prior convictions, it is incumbent upon the trial court to order a severance.
As we interpret Article 36.09, supra, the mandatory ground for severance that one defendant has 'a previous admissible conviction' against him is applicable only where one defendant has no prior criminal record or at least no prior admissible conviction and the co-defendant has a prior conviction or convictions which are admissible. At either stage of the bifurcated trial, if the defendants all have prior admissible convictions, the ground for severance must be based on the fact that 'a joint trial would be prejudicial' as a result thereof, i.e., the nature of the prior convictions against one defendant, the large number of such convictions admissible against one defendant as compared to those admissible against the other defendant, etc. Such ground for severance, however, is addressed to the sound discretion of the trial judge.
The State's evidence reflects that police officers apprehended the appellant, co-defendant Johnson and an eleven year old juvenile inside the burglarized service station around 2:15 a.m.
At the close of the evidence at the guilt stage of the proceedings, the appellant Robinson re-urged his original motion...
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Wilder v. State
...be prejudicial to any defendant. Article 36.09, V.A.C.C.P. See Jackson v. State, 504 S.W.2d 488 (Tex.Cr.App.1974); Robinson v. State,449 S.W.2d 239 (Tex.Cr.App.1969). We conclude that the admission of the appellants' statements was harmless error beyond a reasonable doubt and that the trial......
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Lackey v. State
...was not. Both were admitted as part of a properly authenticated Texas Department of Corrections pen packet. In Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969), this Court held that the failure of a judgment of a prior conviction to reflect a signature by a judge would not render it inad......
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Thornton v. State
...a severance should be granted as a matter of right. After appellant's brief was filed in the trial court, this Court held in Robinson v. State, 449 S.W.2d 239, that the mandatory ground for severance applies only where one defendant has no prior admissible conviction and a co-defendant has ......
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Saunders v. State
...conviction and the defendant has no prior admissible conviction, this Court has held that severance is mandatory. Robinson v. State, Tex.Cr.App., 449 S.W.2d 239; Calverley v. State, Tex.Cr.App., 511 S.W.2d 60. The defendant must allege these prerequisites in a motion and offer proof, howeve......