Opinion issued March 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00217-CR
NO. 01-06-00218-CR
NO. 01-06-00219-CR
____________
SHEDRICK JERMANE WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1033107, 1033108, & 1033109
MEMORANDUM OPINION
After a joint trial with co-defendant, Ronald J. Hamilton, a jury found appellant, Shedrick Jermane White, guilty of the offenses of aggravated assault on a public servant, (1) unlawful possession of a firearm by a felon, (2) and aggravated robbery. (3) Appellant pleaded true to the allegations in two enhancement paragraphs that he had two previous felony convictions, and the jury assessed his punishment at confinement for 55 years in the aggravated assault on a public servant case, 20 years in the unlawful possession of a firearm by a felon case, and 60 years in the aggravated robbery case. In his sole issue, appellant contends that the trial court abused its discretion in "denying appellant's reurged motion to sever his trial from co-defendant Ronald James Hamilton, who pled guilty before the jury, while appellant pled not guilty before the same jury."
We affirm.
Factual and Procedural Background
A Harris County Grand Jury issued true bills of indictment, accusing appellant and his co-defendant, Ronald J. Hamilton, of the offenses of aggravated assault on a public servant, unlawful possession of a firearm by a felon, and aggravated robbery. On February 15, 2006, appellant filed a pre-trial motion to sever his three cases from Hamilton's three cases, arguing that a joint trial would be prejudicial to appellant because (1) Hamilton made statements incriminating appellant, and if those statements were admitted into evidence and Hamilton did not testify, appellant's rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, (4) article I, section 10 of the Texas Constitution, (5) and article 1.05 of the Texas Code of Criminal Procedure (6) would be denied; (2) appellant and Hamilton had antagonistic defenses; and (3) the quantity of evidence against Hamilton was grossly disproportionate to that against appellant. It appears that the trial court denied appellant's motion for severance sometime before trial. (7)
At the beginning of the trial, Hamilton pleaded not guilty to the offense of aggravated assault on a public servant, but guilty to the offenses of unlawful possession of a firearm by a felon and aggravated robbery. Appellant then entered a plea of not guilty as to all three offenses. After both defendants entered their pleas, the State made its opening statement, appellant's counsel reserved his right to make an opening statement, and then Hamilton's counsel gave an opening statement. The State called two witnesses, and during its direct examination of the second witness, the court adjourned for the remainder of the day.
On the following morning, prior to the presentation of any additional witnesses and outside the presence of the jury, appellant re-urged his motion to sever. Appellant asserted that at the time the trial court denied his pre-trial motion to sever, and not until Hamilton entered his pleas, neither appellant nor the trial court had any reason to believe that he would enter two pleas of guilty before the jury. In light of Hamilton's guilty pleas, appellant re-urged his motion and asked the trial court to reconsider its previous ruling on the ground that Hamilton's pleas of guilty in two of the three cases would be prejudicial to appellant. He asserted that "[t]he amount of the evidence obviously with the guilty plea against Mr. Hamilton is grossly disproportionate to that against [appellant]." The trial court denied appellant's motion.
Waiver
In his sole issue, appellant argues that the trial court abused its discretion and "violated [his] right to a fair trial by denying [his] reurged motion to sever his trial from co-defendant Ronald James Hamilton, who pled guilty before the jury, while appellant pled not guilty before the same jury."
A trial court must order a severance upon a timely motion and upon introduction of evidence which establishes either (1) that there is a previous admissible conviction against one defendant or (2) that a joint trial would be prejudicial to any defendant. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex. Crim. App. 2000). Specifically, article 36.09 provides that,
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 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, 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 (emphasis added).
The purpose of filing a motion to sever is to alert the trial court to potentially prejudicial evidence and to allow the court an opportunity to rule on the motion as the prejudicial evidence becomes apparent. Aguilar, 26 S.W.3d at 906. A motion to sever on the grounds of unfair prejudice under article 36.09 is "timely" if made at the first opportunity or as soon as the grounds for prejudice become apparent or should have become apparent, thus providing the trial court an opportunity to rule on the potentially prejudicial evidence at the time it is introduced. Id. at 910. Implicit in the requirement that the motion be timely is a requirement that the underlying grounds be alleged in a timely fashion as well. Qualley v. State, 206 S.W.3d 624, 638 (Tex. Crim. App. 2006). A new ground is in essence a new motion, and its timeliness should be viewed accordingly. Id.
Here, at the very latest, appellant became aware that Hamilton was going to plead guilty to two of the three charged offenses at the time he entered his pleas. However, appellant did not present to the trial court his motion to sever on this new ground until the following morning. In the interim, the State and Hamilton had made their opening statements and the State had presented the testimony of two witnesses. Thus, appellant's motion was not made at the first opportunity or as soon as the ground for prejudice became, or should have become, apparent. Accordingly, we hold that appellant's motion was not timely and nothing is preserved for our review.
We overrule appellant's sole issue.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
1. 2. 3. See id. § 29.03(a) (Vernon 2003). Appellate Cause Number 01-06-00219-CR; Trial
Court Cause Number 1033109.
4. 5. See Tex. Const. art. I, § 10.
6. See Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005).
7.