Mostafa Aram Azadpour v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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MOSTAFA ARAM AZADPOUR, No. 08-11-00308-CR
§
Appellant, Appeal from
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v. County Criminal Court No. 8
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC # 1148393)
§

OPINION

Mostafa Aram Azadpour, pro se, appeals his conviction of resisting arrest.1 A jury found

Appellant guilty and the court assessed punishment at one year in jail, probated, and a fine of

$4,000, half of which is probated. We affirm.

FACTUAL SUMMARY

Emily Murphy is employed by the City of Euless as a court clerk. On February 11, 2009,

Murphy was told that Appellant would be coming to the office to retrieve something and she was

shown the envelope intended for him. Appellant arrived at around 11 a.m. and Murphy gave him

the envelope. Appellant opened it and then shoved it back under the glass. Appellant appeared

to be angry. He told Murphy it was unacceptable and he asked to see the court manager, Ms.

1
Appellant represented himself at trial but retained an attorney for appeal. After Appellant’s brief and reply brief
had been filed, but prior to the submission date, the court was notified that counsel had died. The court gave
Appellant an opportunity to retain new counsel but he declined to do so.
Alexander. Murphy told him that Alexander was in a meeting and Appellant left. After a few

minutes, Appellant came back into the clerk’s office and waited in line while Murphy helped

another customer with a ticket. Murphy was explaining deferred adjudication to the man and

told him that he could not get another traffic ticket in Tarrant County for ninety days. Appellant

suddenly yelled, “Euless, only Euless.” She repeated to the customer that it was ninety days in

Tarrant County and Appellant again interrupted her by yelling “Euless, only Euless.” Murphy

found it difficult to help the customer at the counter because Appellant, who appeared agitated

and upset, continued to interrupt her by speaking in a loud voice. Officer Pamela Byers came

over and asked Appellant to not interfere with Murphy and her customer.

Pamela Joy Byers is a police officer with the City of Euless and she is assigned to the

Euless municipal courts as a warrant officer and bailiff. When Appellant arrived at the

municipal court, the clerks notified Byers because Appellant had a history of being verbally

abusive. Byers went out into the lobby and stood where she could be seen by Appellant as she

had on prior occasions. Appellant was in line and other individuals were standing in line behind

him. In order to not intimidate the individuals standing in line, Byers played Solitaire on her

PalmPilot while standing in the lobby in the event she needed to intervene. Appellant began

yelling at Byers and told her that what she was doing was subject to open records. Byers showed

him the screen and explained that she was only playing Solitaire. The other individuals in line

behind Appellant began laughing when they saw the screen but Appellant continued to yell about

her using the PalmPilot to record what he was doing. Appellant became so agitated that the other

individuals in the line began backing away. In an effort to calm Appellant, Byers told him he

should make any requests he wanted.

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 One of the clerks, Emily Murphy, was speaking to a man about his citation and

explaining the rules of “deferred” to him when Appellant began yelling at the clerk and

disagreeing with her instructions given to the man. Byers instructed Appellant to stop interfering

with the clerk and to mind his own business. She then told him to go over to the open clerk’s

window but Appellant began demanding copies of the video taken by the cameras in the lobby.

Byers continued to tell Appellant to step over to the clerk’s window to take care of his business.

Appellant went to the window but he continued to yell at Byers and at a second police officer,

Donald Lee Scott, who had arrived to assist Byers. Byers finally told Appellant to calm down

and take care of his business or leave, but he continued to argue. Consequently, both Byers and

Scott repeatedly instructed Appellant to leave the building or he would be arrested for trespass.

Appellant refused to leave. Officer Scott attempted to take Appellant’s arm to escort him from

the building but Appellant jerked his arm away. Scott then grabbed Appellant by the arm and

both officers escorted him out of the lobby and into the vestibule. At that point, Appellant began

calling Scott an obscene name and repeatedly stating, “This is bullshit.” Byers instructed Scott

to retrieve her ticket book to write Appellant a citation for disorderly conduct. Byers attempted

to calm Appellant but he backed out of the building while continuing to repeat “This is bullshit.”

When Appellant began heading toward his car, Byers stopped him because he was so enraged

and she was concerned for her safety and the safety of other people in the parking lot. Byers told

Appellant he was under arrest but he continued moving towards his car, a convertible, while

yelling profanities. Byers became concerned that Appellant might have a weapon in the vehicle

and she again told him he was under arrest. She got behind Appellant and instructed him to put

his hands behind his back but he refused to comply. Byers reached for Appellant’s left arm to

control him but he pulled away from her. Appellant pulled out his cell phone, called 911, and

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stated he was being attacked in the parking lot. Byers could not handcuff Appellant because he

kept pulling his arms away from her and he pushed her arm each time she attempted to grab him.

Byers radioed for assistance in the parking lot and then placed Appellant in a bear hug to prevent

him from getting in the car. Sergeant David Chaney saw Byers struggling with Appellant and he

stopped to assist her. Chaney put Appellant in a wrist lock and Byers was able to handcuff him.

Byers then took Appellant back into the building.

The State charged Appellant with resisting arrest and criminal trespass. The cases were

tried together before a jury and Appellant represented himself. Appellant testified that he was at

the municipal court on February 11, 2009 to retrieve a record of a trial for an appeal from a

municipal court. He denied creating any disturbances and said that he was standing quietly and

patiently when Byers and Scott “jump[ed] on [him].” He also denied committing criminal

trespass because he had a right of access and he was there to conduct legitimate business.

Appellant expressly denied refusing to leave. He did admit resisting the officers’ efforts to seize

his cell phone and his notebook and said that he resisted so that he could throw those items into

his convertible. Appellant freely and voluntarily gave his hand to the officer after he put those

items in the car. The jury rejected Appellant’s defense and found him guilty of both offenses.

LEGAL SUFFICIENCY

In his first issue, Appellant challenges the legal sufficiency of the evidence supporting his

conviction of resisting arrest. He argues that he lacked the requisite culpable mental state to

commit the offense. Additionally, he maintains that the State failed to prove beyond a

reasonable doubt that he used physical force against the officers.

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 Standard of Review and Elements of the Offense

The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining

whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-

95 (Tex.Crim.App. 2010). Under the Jackson standard, a reviewing court must consider all

evidence in the light most favorable to the verdict and in doing so determine whether a rational

justification exists for the trier of fact's finding of guilt beyond a reasonable doubt. 2 Brooks, 323

S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole

judge as to the weight and credibility of witness testimony, and therefore, on appeal we must

give deference to those determinations. See Brooks, 323 S.W.3d at 894-95. If the record

contains conflicting inferences, we must presume the trier of fact resolved such facts in favor of

the verdict and defer to that resolution. Id. On appeal, we serve only to ensure the trier of fact

reached a rational verdict. Id. We may not reevaluate the weight and credibility of the evidence

produced at trial and in so doing, substitute our judgment for that of the fact finder. King v.

State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007).

A person commits the offense of resisting arrest if he intentionally prevents or obstructs a

person he knows is a peace officer or a person acting in a peace officer’s presence and at his

direction from effecting an arrest, search, or transportation of the actor or another by using force
2
The Jackson standard of review requires the appellate court to review all of the evidence admitted at
trial. The trial court admitted into evidence two DVDs, State’s Exhibits 1 and 2. State’s Exhibit 1 is a recording
from a camera in the lobby of the municipal court building. State’s Exhibit 2 is a record from a camera in the
parking lot. Appellant has filed a motion to have State’s Exhibits 1 and 2 forwarded to this court for our review.
We entered an order requiring the official court reporter and/or the trial court clerk to prepare and file a
supplemental record containing those two exhibits. The supplemental record has been filed and the court has
reviewed the exhibits.

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against the peace officer or another. TEX.PENAL CODE ANN. § 38.03(a)(West 2011). A person

acts intentionally, or with intent, with respect to the nature of his conduct, or to a result of his

conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

TEX.PENAL CODE ANN. § 6.03(a)(West 2011). Whether the defendant possessed the requisite

intent to commit an offense is most often proven through the circumstantial evidence

surrounding the crime. Sholars v. State, 312 S.W.3d 694, 703 (Tex.App.--Houston [1st Dist.]

2009, pet. ref’d). Intent may be inferred from the acts, words, and the conduct of the appellant.

Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004).

Intent

The offense of resisting arrest requires the State to prove not only that the defendant

intentionally prevented or obstructed his arrest but also that the defendant acted with the

knowledge that the person attempting to arrest him is a peace officer or a person acting in a

peace officer’s presence and at his direction. In this case, Appellant does not challenge the

sufficiency of the evidence proving that he knew Byers was a police officer. The only issue is

whether Appellant acted intentionally to prevent or obstruct the peace officer from arresting him.

Appellant argues that he acted as he did because he was attempting to avoid seizure of his

personal belongings, namely his cell phone and notebook, by placing them in the car. He also

claims that he permitted the officers to place a handcuff on one wrist and he believed that was

sufficient to “consent” to the arrest. Appellant bases his arguments on his own testimony. The

jury heard other evidence regarding Appellant’s words and conduct. There is considerable

evidence that Appellant argued with the officers and municipal court personnel from the

beginning of their encounter inside of the building. Appellant initially would not obey the

officers’ commands to conduct himself appropriately inside of the building and he subsequently

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refused repeated commands to leave the building. After Byers told Appellant she was going to

give him a citation for disorderly conduct, Appellant began walking away and he would not obey

Byers’ commands to stop walking towards his car. Byers told Appellant he was under arrest and

instructed him to place his hands behind his back, but he repeatedly pulled his arms away from

her and pushed her arm away so that she could not place the handcuffs on him. Appellant’s

assertion that he permitted the officers to handcuff one wrist is directly contradicted by Officer

Chaney’s testimony that he had to place a wrist lock on one of Appellant’s wrists in order to get

the arm behind the back so a handcuff could be placed on that wrist. It was only after forcing

Appellant to place that arm behind his back that they were able to get the other arm behind his

back and handcuff him. The jury was not required to believe Appellant’s testimony regarding

his intent and it was free to resolve the conflicts in the testimony as it did. The evidence is

legally sufficient to support a finding that he acted intentionally to prevent or obstruct Byers

from arresting him.

Use of Force

Appellant next argues that the evidence is legally insufficient to prove beyond a

reasonable doubt that he used force against Officer Byers. The information alleged that

Appellant intentionally prevented or obstructed Officer Byers from effecting Appellant’s arrest

by pushing Officer Byers.

Appellant cites cases holding that noncompliance or refusal to be arrested does not

constitute resisting arrest by force under Section 38.03. See Sheehan v. State, 201 S.W.3d 820,

823 (Tex.App.--Waco 2006, no pet.)(passive non-cooperation with an arrest is not by itself

an act of the use of force against a peace officer); Martin v. State, No. Nos. 03-08-00400-CR,

03-08-00401-CR, 2009 WL 1980951, at *4 (Tex.App.--Austin July 10, 2009, no pet.)(same).

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Appellant also relies on Leos v. State, 880 S.W.2d 180 (Tex.App.--Corpus Christi 1984, no pet.)

and Raymond v. State, 640 S.W.2d 678, 679 (Tex.App.--El Paso 1982, pet. ref’d). In Leos, the

Corpus Christi Court of Appeals held that trying to flee from a police officer is insufficient use

of force under Section 38.03. Leos, 880 S.W.2d at 184. This court held in Raymond that the

mere act of pulling away from an officer’s grasp does not constitute resisting arrest because the

force was directed away from the officer, not toward him. Raymond, 640 S.W.2d at 679. As

observed by the State in its brief, this court has since disavowed the language in Raymond

requiring that the force be directed “toward” the officer in order to constitute resisting arrest.

Hopper v. State, 86 S.W.3d 676, 679 (Tex.App.--El Paso 2002, no pet.).

The Second Court of Appeals has addressed sufficiency of the evidence in a case

factually similar to this one. In Clement v. State, 248 S.W.3d 791 (Tex.App.--Fort Worth 2008,

no pet.), the evidence showed that the defendant resisted the officer’s attempts to arrest her by

pulling away from him and moving in the opposite direction of the officer’s instructions. Id., at

797. After the officer handcuffed the defendant, she managed to free one hand and became more

resistant when he handcuffed her the second time. Id. The defendant continued to struggle,

resist, and pull away from the officer as she was being put into a patrol car. The court found the

evidence sufficient because a reasonable juror could have found beyond a reasonable doubt that

the defendant intentionally resisted the officer’s initial attempts to arrest her. Id. at 799.3

We agree that passive non-compliance is insufficient to prove that the defendant used

force against an officer, but Appellant did more than merely walk away or otherwise passively

resist arrest. The officer specifically testified that Appellant pushed her arm while she was

attempting to place the handcuffs on him and he continued to pull away from and struggle

3
The Supreme Court transferred this case from the Second Court of Appeals to this Court pursuant to a docket
equalization order. The Rules of Appellate Procedure require us to decide this case in accordance with precedent of
the Second Court of Appeals. See TEX.R.APP.P. 41.3.

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against her while she attempted to arrest him. This evidence is sufficient to permit a rational trier

of fact to find beyond a reasonable doubt that Appellant used force against Officer Byers to

prevent or obstruct his arrest. See Humphreys v. State, 565 S.W.2d 59, 60 (Tex.Crim.App.

1978)(striking at an officer’s arm, pushing the officer, and struggling with the officer is sufficient

use of force under Section 38.03); Clement, 248 S.W.3d at 799; Pumphrey v. State, 245 S.W.3d

85, 91-92 (Tex.App.--Texarkana 2008, pet. ref’d)(evidence sufficient to support conviction of

resisting arrest where defendant immediately started pulling away and jerking when the officer

informed her she was under arrest for disorderly conduct and defendant jerked, squirmed,

twisted, turned, and struggled against the officer’s efforts to arrest her). Issue One is overruled.

WITHDRAWAL OF WAIVER OF COUNSEL

In Issue Two, Appellant argues that the trial court failed to properly admonish him when

he indicated a desire during trial to withdraw his waiver of the right to counsel. He also

complains that the court denied him the effective assistance of standby counsel.

The facts related to these issues are somewhat complex because more than one judge

presided over the cases and Appellant vacillated on whether he wished to have standby counsel.

The misdemeanor information was filed on March 2, 2009. Appellant initially waived his right

to counsel but he later retained counsel, Danny Burns, who made an appearance in the case on

October 19, 2009. On October 12, 2010, Appellant filed a motion to substitute counsel in which

he requested that the court permit him to represent himself. He alternatively requested that

Burns remain as standby counsel. At the hearing on the motion, the trial judge4 stated on the

record that she had previously given Appellant the required warnings about the dangers of self-

representation. The court admonished Appellant that it was in his best interest to be represented

4
Appellant’s cases were originally filed in the County Criminal Court Number Four of Tarrant County and the
Honorable Deborah Nekhom conducted the hearing.

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by counsel and if he represented himself, he would be held to the same standards as an attorney

and he would be expected to be aware of the rules of evidence and procedure. The trial court

granted the motion. The court ordered that Burns would remain at all hearings and the trial as

standby counsel for Appellant. Appellant’s cases were subsequently transferred to County

Criminal Court Number Eight of Tarrant County. The Honorable Daryl R. Coffey, Judge of

County Criminal Court Number Eight, conducted a hearing on pretrial motions on April 27, 2011

and addressed Appellant’s qualifications to represent himself. Appellant testified that he had just

turned 50 years of age and he was unemployed at the time but he did contract engineering work.

Appellant has a bachelor’s degree and a master’s degree and he had done some research for a

Ph.D. in electrical engineering and computer science. Appellant had the ability to read and

comprehend the law. The trial judge stated on the record that he had read the numerous motions

Appellant had filed and concluded that the motions were of good form and literate. Appellant

told the court that he had represented himself in the Euless Municipal Court and in federal court

in a California discrimination case which went to the United States Supreme Court. The court

advised Appellant that by representing himself he would be required to follow the law, the rules

of evidence, and the rules of the court. Appellant stated that he understood and he volunteered

that he knew he could not claim ineffective assistance of counsel. Appellant also told the court

that Burns had represented him for about a year and a half in the case but he began representing

himself due to what he believed was ineffective assistance of counsel by Burns. The court

concluded Appellant was competent to represent himself and advised Appellant that he was

going to let him represent himself in this case. Later during this same hearing, Appellant had the

following exchange with the trial court:

[Appellant]: I have two administrative issues I would like to bring up, Your
Honor.

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 [The Court]: Okay.

[Appellant]: One is that when we had the substitution of counsel, Mr. Danny
Burns, the Order of Substitution is written such that his presence is required at all
hearings and I assume trial, and --

[The Court]: I’m not going -- I’m going to rescind that.

[Appellant]: Great. That’s why I was trying to get clarification --

[The Court]: You’re -- you’re stuck with yourself.

[Appellant]: That is the way I want it.

A few weeks before trial, Appellant had a subpoena duces tecum issued for Burns to

appear at trial. On the day of trial, Appellant filed a motion requesting the presence of Burns

during trial as his standby attorney. The record does not reflect that Appellant ever presented the

motion to the trial court or obtained a ruling.

Prior to voir dire, the trial judge addressed Appellant’s right to counsel. Appellant

persisted in his desire to waive counsel and he signed a written waiver. At the beginning of trial,

the State invoked the Rule which had the effect of excluding Burns from the courtroom.

At the conclusion of the State’s case-in-chief and just before a lunch break, the trial court

asked Appellant whether he wished to present any evidence. Appellant told the trial court that he

wished to consult with standby counsel, Mr. Burns, before making that decision. The court

reminded Appellant that the prior order making Burns standby counsel had been rescinded and

Appellant was representing himself. The court gave Appellant the opportunity to consult with

Burns or anyone he wished during the lunch break. After the break, Burns came into the

courtroom in the event he was needed as standby counsel. The court informed Burns that he

could assist Appellant if he wished but he would not be allowed to sit at counsel table. Since

Appellant had issued a subpoena for Burns, the court asked Appellant whether he was going to

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call him as a witness. When Appellant indicated that he would not release Burns from the

subpoena, the court swore Burns as a witness and instructed him to sit outside in the hallway.

The court informed Appellant that Burns could not assist him and also be a witness in the case.

Later, during the defense’s case-in-chief, Appellant asked whether Burns was still present

and the trial court informed him that he was, but Appellant had subpoenaed him as a witness and

the Rule had been invoked. The court gave Appellant the choice of calling him as a witness or

releasing him from the subpoena. Appellant explained that he wanted to release him as a witness

so he could ask him a question. The court released Burns from the subpoena and told Appellant

that he could speak with him during the break, but Burns would not be permitted to sit at counsel

table with him.

Applicable Law

A criminal defendant has a right to the assistance of counsel in state court, guaranteed by

the Sixth and Fourteenth Amendments to the United States Constitution. Hatten v. State, 71

S.W.3d 332, 333 (Tex.Crim.App. 2002), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963). The United States Supreme Court recognized in Faretta v.

California that a criminal defendant also has the right to waive counsel and represent himself.

Faretta v. California, 422 U.S. 806, 818-20, 95 S.Ct. 2525, 2532-33, 45 L.Ed.2d 562 (1975);

Hatten, 71 S.W.3d at 333. To be constitutionally effective, such a decision must be made

competently, voluntarily, knowingly, and intelligently. Godinez v. Moran, 509 U.S. 389, 400,

113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541.

The decision is made knowingly and intelligently if made with a full understanding of the right

to counsel, which is being abandoned, as well as the dangers and disadvantages of self-

representation. Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541; Williams v. State, 252 S.W.3d 353,

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356 (Tex.Crim.App. 2008).

The Court of Criminal Appeals has held on several occasions that there is no

constitutional right to hybrid representation. See e.g., Dunn v. State, 819 S.W.2d 510, 525-26

(Tex.Crim.App. 1991); Scarbrough v. State, 777 S.W.2d 83, 92 (Tex.Crim.App. 1989); Landers

v. State, 550 S.W.2d 272, 280 (Tex.Crim.App. 1977). In Scarbrough, the Court of Criminal

Appeals held that the admonishments regarding the dangers and disadvantages of self-

representation should include making the accused aware that there is no right to standby counsel.

Scarbrough, 777 S.W.2d at 93. If the defendant asserts a desire for self-representation, but also

indicates he would prefer what actually amounts to hybrid representation, the trial court should

decide at the earliest practicable moment whether to allow it, and if not, should inform the

defendant he must choose instead between two mutually exclusive rights--the right to self-

representation or to representation by counsel--and inform him that there is no “middle ground.”

Id. If hybrid representation is not to be a permissible option, the defendant must be made aware

of that circumstance, and given the opportunity, thus informed, to reassert his right to self-

representation. Id. If he continues to insist on conducting his own defense, but only with the

selective aid of counsel, it may be said his assertion of the right to self-representation is

“conditional,” and thus, equivocal. Id.

Analysis

The issue of hybrid representation and standby counsel came up several times in the trial

court. First, at the November 18, 2010 hearing on Appellant’s motion to substitute himself for

retained counsel, Appellant asked if Burns could act as standby counsel. Judge Nekhom made it

clear that Appellant did not have a right to hybrid representation and told him bluntly, “When

you’re pro se, you’re pro se.” The court continued to emphasize that Appellant would be

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responsible for representing himself, but told him that if Mr. Burns was willing to advise

Appellant, she would permit it. The court ordered that Burns would remain at all hearings and

the trial as standby counsel for Appellant. Judge Nekhom’s admonishments regarding hybrid

representation complied with Scarbrough.

Approximately five months later, Judge Coffey conducted a pretrial hearing and

addressed Appellant’s qualifications to represent himself. After the court determined that

Appellant was competent to represent himself, Appellant brought up the prior order making

Burns the standby counsel. Judge Coffey told Appellant he would not permit standby counsel

and he was going to rescind the order. Appellant did not object to that ruling and in fact

indicated his agreement. Thus, the record does not reflect that Appellant made a conditional

assertion of his right to self-representation.

Appellant did not bring up the subject of standby counsel again until the day of trial,

June 14, 2011, when he filed a “notice” requesting the presence of standby counsel, but he did

not present his request to the court or obtain a ruling on it. At the conclusion of the State’s case-

in-chief and again during the defense’s case-in-chief, Appellant broached the subject of standby

counsel. The court reminded Appellant that he had rescinded the order making Burns standby

counsel. A short time later, Appellant asked the court whether Burns was present because he

wanted to ask him a question. The court permitted Appellant to consult with Burns. Appellant

did not indicate that he wished to withdraw his waiver of the right to counsel and the record does

not support a finding that Appellant’s assertion of his right to represent himself was conditional

or equivocal. Appellant’s first argument is without merit.

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 Denial of Effective Assistance of Standby Counsel

Appellant also argues that he was denied the effective assistance of standby counsel.

Given that there is no constitutional right to hybrid representation, courts have held that there is

no corresponding constitutional right to the effective assistance of standby counsel. See, e.g.,

United States v. Oliver, 630 F.3d 397, 413-14 (5th Cir. 2011); United States v. Morrison, 153

F.3d 34, 55 (2nd Cir. 1998); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992). Even

assuming for the sake of argument that there is such a right, the record does not support

Appellant’s claim that he was deprived of the effective assistance of standby counsel. Appellant

agreed with Judge Coffey’s decision to rescind the order appointing standby counsel. It was only

later during trial that Appellant requested the assistance of standby counsel. Appellant had,

however, subpoenaed Burns for trial. When Appellant refused to release Burns from the

subpoena, the trial court swore Burns as a witness and instructed him to remain outside of the

courtroom. TEX.R.EVID. 614. After Appellant released Burns from the subpoena, the court

permitted Appellant to consult with Burns. Thus, the record reflects that Appellant created the

situation which caused Burns to be excluded from the courtroom for a time during the trial.

Appellant has failed to show that the trial court denied him the effective assistance of standby

counsel. For all of these reasons, we overrule Issue Two.

CONSOLIDATION OF THE CASES

In Issue Three, Appellant contends that the trial court erred by consolidating the resisting

arrest and criminal trespass cases for trial. The State responds that Appellant’s motion to sever

filed on the day of trial was untimely, and alternatively, any error is harmless.

Section 3.02 of the Penal Code provides that a defendant may be prosecuted in a single

criminal action for all offenses arising out of the same criminal episode. TEX.PENAL CODE ANN.

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§ 3.02(a). If the State properly joins two offenses pursuant to Section 3.02, the defendant has a

right to sever the cases into different trials if he timely invokes that right. TEX.PENAL CODE

ANN. § 3.04(a). When a defendant timely requests a severance under Section 3.04(a), his right to

a severance is absolute and the severance is mandatory. King v. State, 189 S.W.3d 347, 353

(Tex.App.--Fort Worth 2006, no pet.). A motion to sever must be raised before trial. See

Thornton v. State, 986 S.W.2d 615, 617 (Tex.Crim.App. 1999). Appellant did not file a written

motion to sever until the day of trial. He did file a written notice on April 1, 2011 objecting to

consolidation of the two cases and he informed the trial court during a pretrial hearing that he

opposed consolidation. We find that Appellant timely and specifically objected to consolidation

of the cases. See Ford v. State, 782 S.W.2d 911, 912 (Tex.App.--Houston [14th Dist.] 1989, no

pet.)(stating that the defendant’s complaint is sufficient if it apprises the trial court that he does

not desire to have the offenses joined in a common trial). The trial court erred by consolidating

the cases over Appellant’s objection.

Severance error is not structural error and is subject to a harm analysis under

TEX.R.APP.P. 44.2(b). Llamas v. State, 12 S.W.3d 469, 470-71 (Tex.Crim.App. 2000). Under

Rule 44.2(b), any error that does not affect a substantial right must be disregarded. A substantial

right is affected when the error had a substantial and injurious effect or influence on the jury's

verdict. King v. State, 953 S .W.2d 266, 271 (Tex.Crim.App. 1997). Substantial rights are not

affected if, after examining the record as a whole, we have fair assurance that the error did not

influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355

(Tex.Crim.App. 2002).

In the case of the erroneous denial of a motion for severance, the error is harmless if the

offenses are intertwined in one inseparable transaction, because evidence of one offense would

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have been admissible as same transaction contextual evidence in the separate prosecution of the

other offense. King, 189 S.W.3d at 353; Tovar v. State, 165 S.W.3d 785, 795 (Tex.App.--San

Antonio 2005, no pet.); Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.--El Paso 2000, pet.

ref’d). Same transaction contextual evidence is evidence of another crime or act that is so

intertwined with the charged offense that full proof of either crime could not be had without

eliciting testimony of the other. Delgado v. State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007).

The facts related to the criminal trespass offense are so intertwined with the facts related to the

resisting arrest offense that the evidence related to each offense would have been admissible in a

separate trial of each charge. See King, 189 S.W.3d at 354. Consequently, the error is

consolidating the cases for trial over Appellant’s objection is harmless. Issue Three is overruled.

The judgment of the trial court is affirmed.

Appellant is hereby notified that he has a right to file a petition for discretionary review

with the Court of Criminal Appeals. See TEX.R.APP.P. 68.1. The petition is due to be filed

within thirty days after the day of our judgment in this case or the day the last timely motion for

rehearing is overruled by this Court. See TEX.R.APP.P. 68.2.

May 29, 2013
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)

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