Wedlow v. State

• Decision Date: 04 April 1991
• Docket Number: Nos. 05-90-00090-C,05-90-00091-CR,s. 05-90-00090-C
• Citation: 807 S.W.2d 847
• Parties: Johnny Lee WEDLOW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 847

807 S.W.2d 847

Johnny Lee WEDLOW, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-90-00090-CR, 05-90-00091-CR.

Court of Appeals of Texas,

Dallas.

April 4, 1991.

Johnny Wedlow, pro se.

John G. Tatum, Dallas, for appellant.

Vicki Vellenga Solomon, April E. Smith, Dallas, for appellee.

Before ENOCH, C.J., and LAGARDE and BURNETT, JJ.

OPINION

ENOCH, Chief Justice.

Johnny Lee Wedlow appeals his convictions for aggravated robbery and burglary of a habitation. A jury assessed punishment, enhanced in each case by two prior convictions, at life and fifty years' confinement, respectively. Because we agree that the trial court erred by denying appellant's motion for severance, we reverse the judgments of the trial court and remand the causes for proceedings consistent with this opinion.

Appellant's attorney filed an Anders ¹ brief in which he raised four arguable points of error and concluded that the appeals were wholly frivolous and without merit. A copy of counsel's brief was delivered to appellant, and appellant was advised that he could examine the appellate record and that he had a right to file a pro se brief. Appellant filed a pro se brief raising four points of error.

Facts regarding aggravated robbery

The complainant, Daniel Jimmy Cuellar, testified that on April 22, 1989, he was the manager for the Parkside Place Apartments, and that at about 4:00 a.m. his girlfriend saw a light on in a vacant apartment. Cuellar had recently evicted the tenants of that apartment for selling drugs. Cuellar went to the apartment and chased away some trespassers who were knocking on the door of the apartment. He went to the apartment complex office and retrieved the key to the apartment and his handgun. He then returned to the apartment and, after determining that the apartment was empty, he sat down to see what would happen. Several people knocked on the door looking for drugs. Cuellar dozed off. He was awakened by the front door of the apartment being kicked in and by a voice yelling, "Police, freeze and drop the gun." Cuellar did as he was told; he dropped the gun and lay spread-eagled on the floor. The person claiming to be a police officer, whom Cuellar identified as the appellant, took Cuellar's wallet and began kicking him in the face and demanding drugs. Cuellar struggled to his feet and told appellant that he didn't have any drugs. As Cuellar ran from the apartment, appellant pointed Cuellar's gun at him and pulled the trigger. Because Cuellar had the gun on safety, it would not fire.

Dallas police officer Wayne Nichols testified that he responded to the call regarding the assault on Cuellar. He said that Cuellar told him that he had been assaulted by a person claiming to be a police officer and that his .25 semi-automatic pistol was taken. He related that Cuellar said appellant aimed the gun at him and attempted to shoot him but could not because the gun was on safety.

Facts regarding burglary of a habitation

Ricky Smith testified that, as he was driving home from work at approximately 6:45 a.m. on April 22, 1989, he saw a black man with a beard attempting to break into the front of a trucking business. Smith pulled into a nearby Stop-N-Go and called the police. Dallas police officer Christopher Allen testified that he responded to Smith's burglary in progress call. When Officer Allen arrived at the trucking business, he came upon a house that sat out in front of the trucking business and saw that one of the house's doors had been kicked in and was ajar. He called for backup help and watched two sides of the house while his partner watched the other two sides. As the backup units arrived, appellant ran out of the house and Officer Allen arrested him. Dallas police officer Ronald Caldwell, one of the backup officers, searched the area after appellant was arrested and discovered Cuellar's .25 semi-automatic pistol underneath some bushes on the north side of the house. Daniel Carl Coleman testified that he lived in a house which was located in front of the trucking company. He said that, when he returned home at approximately 9:00 or 10:00 a.m. on April 22, 1989, he discovered that his home had been burglarized.

Responding to the prosecution testimony in these cases, appellant testified that he was drunk because he had been at a party and that he and two men, whose names he did not know, went to the Parkside Apartments at around 2:00 a.m. on April 22, 1989, to buy marijuana. According to appellant, Cuellar answered the door and let in the two men. Appellant remained outside the apartment. Appellant heard shots and went into the apartment. He saw Cuellar running toward the back of the apartment. One of the men had a gun, and the other man was struggling to prevent the person with the gun from shooting Cuellar. Appellant and the two men left the apartment. One of the men had the gun. Appellant and the two men went back to the Pecan Tree Apartments, drank some more and discussed what to do with the gun. One of the men had a friend on Denton Drive, so they decided to take the gun to the friend. As they were walking up Denton Drive, they saw a car coming down the street with no headlights on. They assumed it was the police and hid. The police discovered appellant in some bushes. Appellant denied entering any building or habitation. Appellant testified that some of what was written in a signed statement which he gave to the police after he was arrested was inaccurate.

Sufficiency of the Evidence

Appellant's attorney, in two arguable points of error, challenges the sufficiency of the evidence to support appellant's convictions for burglary of a habitation and aggravated robbery. He contends that the evidence was insufficient to show: that appellant used or exhibited a deadly weapon during the robbery; that the building which was burglarized was a "habitation"; and that appellant was the person who entered the "habitation." In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989).

Our review of the evidence shows that it was sufficient to permit any rational trier of fact to conclude beyond a reasonable doubt that, during the robbery, appellant used or exhibited a "deadly weapon, to wit: a firearm," as alleged in the indictment. A pistol is, by definition, a firearm, and a firearm is per se a deadly weapon. See TEX.PENAL CODE ANN. § 46.01(3) (Vernon 1974); TEX.PENAL CODE ANN. § 1.07(a)(11)(A) (Vernon 1974). Also, when viewed in the light most favorable to the verdict, the evidence is sufficient to permit the fact finder to conclude beyond a reasonable doubt that the building which appellant entered was a "habitation." See TEX.PENAL CODE ANN. § 30.01(1) (Vernon 1989); see generally Blankenship v. State, 780 S.W.2d 198 (Tex.Crim.App.1989); Soliz v. State, 785 S.W.2d 438 (Tex.App.--Corpus Christi 1990, no pet.). Finally, in addition to the facts previously recited, we note that an expert testified that muddy footprints on the house's doors matched the prints made by the tennis shoes which Officer Allen took off appellant's feet when he arrested appellant. We hold, viewing the evidence in the light most favorable to the verdict, that the evidence was sufficient to support any rational trier of fact's determination that appellant entered, and ran from, the habitation. We overrule appellant's attorney's third and fourth arguable points of error.

Appellant's motion for severance

Appellant's attorney's first arguable point of error and appellant's first pro se point of error are identical. Both allege that the trial court erred by denying appellant's request to sever the trial of the aggravated robbery from the trial of the burglary of a habitation. Appellant was indicted separately for each offense. The indictments bear different trial court cause numbers. The records contain two jury charges and two judgments. Prior to the impaneling of the jury, appellant moved the court to try the two cases separately due to the prejudicial effect of the facts of one case tainting the defense of the other case. The trial court denied appellant's motion. The State concedes that the trial court erred by refusing to grant appellant's motion to sever the cases. However, the State argues that appellant was not harmed by the error, and appellant's attorney's Anders brief contains no harm analysis of this point.

At the outset, we note that both parties incorrectly rely upon section 3.04(a) of the penal code. See TEX.PENAL CODE ANN. § 3.04(a) (Vernon 1974). This section provides:

Whenever two or more offenses have been consolidated under Section 3.02 of this code, the defendant shall have a right to a severance of the offenses.

TEX.PENAL CODE ANN. § 3.04(a) (Vernon 1974) (emphasis added). Section 3.02 of the penal code provides, in pertinent part:

(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.

(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.

TEX.PENAL CODE ANN. § 3.02 (Vernon 1974). This statute authorizes several offenses to be joined in a single trial if the State files a written notice at least thirty days prior to trial and if the offenses arose out of the same criminal episode. See Smith v. State, 575 S.W.2d 41 (Tex.Crim.App. [Panel Op.] 1979). Additionally, in the absence of a written notice of joinder as required by section 3.02, a single prosecution on multiple indictments does not constitute "one criminal action." Smith, 575 S.W.2d at 42; Carghorn v. State, 549 S.W.2d 196, 197 (Tex.Crim.App.1977); ...