Smith v. State

• Citation: 998 S.W.2d 683
• Parties: (Tex.App.-Corpus Christi 1999) ROBERT SMITH, Appellant, v. THE STATE OF TEXAS, Appellee. NUMBER 13-97-512-CR
• Decision Date: 15 July 1999
• Court: Court of Appeals of Texas

Page 683

998 S.W.2d 683 (Tex.App.-Corpus Christi 1999)

ROBERT SMITH, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-97-512-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

July 15, 1999.

On appeal from the 144th District Court of Bexar County, Texas. [Copyrighted Material Omitted] Before Chief Justice Seerden and Justices Hinojosa and Yanez

FEDERICO G. HINOJOSA, Justice

O P I N I O N

Opinion by Justice Hinojosa

Appellant, Robert Smith, and co-defendant, Hardesty Bogany, pleaded guilty to the offense of aggravated robbery,¹ and a jury assessed punishment at sixty years imprisonment for each defendant. By four points of error, Smith contends the trial court erred by denying his motion to sever, by admitting evidence of prior convictions, and by refusing to grant a writ of habeas corpus. We affirm.

Shortly after noon on April 10, 1996, Smith entered the San Antonio Jewelry Store. As he entered the store, Smith brandished a .357 Magnum pistol and ordered everyone to get down on the floor. He placed a block of wood in the door to prevent it from closing and locking. Three other men then entered the store, smashed jewelry display cases, and stuffed jewelry into black duffel bags. Approximately $70,000 worth of jewelry was removed from the store. Smith appeared to some witnesses to be the leader because he was giving directions to the other men. Realizing a video camera was in operation, two of the robbers forced two employees to the second floor of the store to retrieve any videotape of the robbery. Both of these employees had guns held to the backs of their heads, and one endured a cocked gun being placed in his mouth. Another employee escaped from the store as the robbery began and called police from a nearby gas station. A mechanic from the station went to the store parking lot and disabled the getaway car. As the police arrived, the robbers ran into the surrounding neighborhood. They were eventually captured in the home of an ill, elderly woman. When police returned the four men to the store, employees identified them as the robbers.

Smith filed a pretrial motion to sever his trial from Bogany's trial because Bogany had allegedly sexually assaulted a cell mate while he was in jail awaiting trial in this case. After a hearing, the trial court denied the motion. Initially, Smith and Bogany pleaded not guilty, but after most of the State's evidence was presented, the men changed their pleas to guilty and requested that the jury assess punishment. Smith did not reurge his motion to sever. The jury heard evidence regarding the alleged sexual assault as well as evidence of Smith's prior convictions. The jury returned a guilty verdict, as instructed, and assessed punishment at sixty years imprisonment for each defendant.²

I. SEVERANCE

By his first point of error, Smith contends the trial court erred by failing to sever his trial from Bogany's trial. By his second point of error, Smith contends the failure to sever violated his due process right as guaranteed by the Fourteenth Amendment to the United States Constitution.

The code of criminal procedure provides:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any 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 cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that . . . a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

TEX. CODE CRIM. PROC. ANN. art. 36.09 (Vernon 1981). Accordingly, severance is not a matter of right but rests within the sound discretion of the trial court unless a joint trial would, as a matter of law, prejudice a co-defendant. Garza v. State, 622 S.W.2d 85, 91 (Tex. Crim. App. 1980); Silva v. State, 933 S.W.2d 715, 719 (Tex. App.-San Antonio 1996, no pet.). Severance impacts more than just the guilt/innocence phase of a trial. Fugon v. State, 963 S.W.2d 135, 137 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd).

When two defendants are tried jointly for the same offense, there is no abuse of discretion in denying a severance if the jury is instructed that damaging evidence admissible against only one accused is not to be considered against his co-defendant. Childs v. State, 491 S.W.2d 907, 909 (Tex. Crim. App. 1973) (evidence one defendant committed aggravated robbery just hours prior to committing offense at issue did not warrant severance when jury was properly instructed), overruled on other grounds, Ward v. State, 591 S.W.2d 810 (Tex. Crim. App. 1978) (op. on reh'g); Olivares v. State, 785 S.W.2d 941, 944 (Tex. App.-El Paso 1990, no pet.) (jury instruction was sufficient to prevent error when evidence was admitted to prove co-defendant was in possession of drug paraphernalia at time of arrest); Simon v. State, 743 S.W.2d 318, 322 (Tex. App.-Houston [1st Dist.] 1987, pet. ref'd) (finding no error where trial court "very carefully instructed the jury that their consideration of such evidence was limited to the party against whom it was admitted"); see also Oden v. United States, 410 F.2d 103, 104 (5th Cir.), cert. denied, 396 U.S. 863 (1969). When the jury assesses similar punishments against the co-defendant, no showing of prejudice is established in the joint trial. Childs, 491 S.W.2d at 909 (citing Johnson v. State, 449 S.W.2d 237, 238 (Tex. Crim. App. 1969)).

In the case before us, the trial court admonished the jury, prior to the sexual assault testimony, that it was to be considered against Bogany only. At Smith's request, the trial court repeated the admonishment during the presentation of the evidence. During the testimony of the sexual abuse victim, the State asked the victim to focus on Bogany's behavior. The court's charge instructed the jury that the evidence could only be considered as to the person against whom it was offered. During closing argument, counsel for both defendants cautioned the jury to consider only the acts of each defendant in determining the punishment as to that defendant.

We conclude the jury was properly instructed as to what evidence to weigh against each defendant. Both defendants were sentenced to sixty years imprisonment for their participation in a very aggressive and violent crime. We hold the trial court did not err by failing to grant Smith's motion to sever. We further hold that such failure to sever did not violate Smith's due process right under the Fourteenth Amendment to the U.S. Constitution. Smith's first and second points of error are overruled.

II. PRIOR CONVICTIONS

By his third point of error, Smith contends the trial court erred in admitting improperly identified evidence of his prior convictions.

The code of criminal procedure provides that during the punishment phase, a trial court may admit evidence of prior criminal convictions. TEX. CODE CRIM. PROC. ANN. art. 37.07, 3(a) (Vernon Supp. 1999). Certified copies of a judgment and sentence are admissible. TEX. R. EVID. 901(b)(7); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). These documents standing alone, however, are not sufficient to prove a prior conviction. Beck, 719 S.W.2d 210. The State must go forward with independent evidence that the defendant is the same person named in the previous conviction. Id.; Howard v. State, 896 S.W.2d 401, 405 (Tex. App.-Amarillo 1995, pet. ref'd); Rosales v. State, 867 S.W.2d 70, 72 (Tex. App.-El Paso 1993, no pet.). Without evidence linking the defendant to the prior conviction, evidence of the prior conviction is simply not relevant. Rosales, 867 S.W.2d at 72.

The court of criminal appeals has recognized four ways to prove prior convictions:

(1)testimony of a witness who personally knows the defendant and the fact of his prior conviction and identifies him;

(2)stipulation or judicial admission of the defendant that he has been so convicted;

(3)introduction of certified copies of the judgment, sentence, and record of the Texas Department of Corrections or a county jail including fingerprints of the accused supported by expert testimony identifying them with known prints of the defendant; or

(4)comparison by the fact finder of a record of conviction which contains photographs and a detailed physical description of the named person, with the appearance of the defendant, present in court.

Daniel v. State, 585 S.W.2d 688, 690-91 (Tex. Crim. App. 1979) (citations omitted). These, of course, are not exclusive. Littles v. State, 726 S.W.2d 26, 28 (Tex. Crim. App. 1984).

Establishing the identity of the defendant is a procedural matter entailing a question of conditional relevance. Howard, 896 S.W.2d at 405-06; Rosales, 867 S.W.2d at 72. The relevance of a prior conviction is conditioned upon the production of evidence sufficient to show that the defendants are one and the same. Beck, 719 S.W.2d at 210-11; Howard, 896 S.W.2d at 406; Rosales, 867 S.W.2d at 72. Evidence should not be excluded merely because its relevance may depend upon the production of additional evidence at a later point in the trial or because its probative strength alone is insufficient to prove a significant fact. Fuller v. State, 829 S.W.2d 191, 197 (Tex. Crim. App. 1992); see TEX. R. EVID. 104(b).

When authenticated copies of conviction records are offered into evidence to prove a prior conviction is part of a defendant's "prior criminal record," it is not essential that supporting "identification" evidence precede the admission of the evidence. Beck, 719 S.W.2d at 210. If, after all proof on the fact in question has been received, the evidence does not, in the aggregate, support a rational finding that the defendant is the same person as the one previously convicted, the fact finder should not be allowed to consider the...