text:
    James Douglas HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00258-CR.
    Court of Appeals of Texas, Waco.
    Feb. 23, 2005.

      H. Fred Neale, Mexia, for appellant.
    Roy Defriend, Limestone County Dist. Atty., Lauri J. Anderson and K C Odom, Limestone County Assts. Dist. Attys., Gro-esbeck, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

The trial court revoked James Douglas Harris’s community supervision for burglary and imposed the original sentence of ten years’ imprisonment. Harris contends in five issues that: (1) the court improperly predetermined that it would revoke his community supervision and impose the original sentence; (2) an assigned judge abused his discretion by denying Harris’s recusal motion and his continuance motion; (3) the court failed to act as a neutral and detached decision maker; (4) the State failed to rebut defense evidence pertinent to one of the grounds for revocation; and (5) the court erred by failing to hold a separate punishment hearing after revoking his community supervision. We will affirm.

Background

Pursuant to a plea bargain, the court on May 29, 2002 sentenced Hams to ten years’ imprisonment and a $10,000 fine, suspended imposition of sentence, and placed him on community supervision for ten years. On October 8, the State filed a motion to “adjudicate.” This motion alleged that Harris had violated the conditions of community supervision by failing to report on July 1, July 22, and August 5, and by failing to pay $350 per month toward his fine, court costs, and restitution.

At a January 30, 2003 hearing, the parties agreed to a modification of the conditions of community supervision and to allow Harris an additional 90 days to demonstrate that he would comply with the conditions of community supervision. The court approved the parties’ agreement and signed an agreed order which the attorneys and Harris’s community supervision officer signed as well. The agreed order scheduled a review hearing for May 2.

On March 4, the State filed an amended revocation motion adding allegations that Harris committed a burglary on February 4 and failed to report on March 3.

The revocation hearing was held on June 26. Harris pleaded “true” to the allegations alleged in the original revocation motion and “not true” to the two additional allegations stated in the amended motion. The State called Harris’s community supervision officer to prove the failure-to-report and failure-to-pay allegations and other witnesses to prove that he committed the burglary alleged. Harris responded with witnesses to controvert the State’s burglary evidence and tendered documentary evidence to the court purporting to establish that he was in the Dallas County jail when he failed to report on March 3.

The prosecutor questioned the authenticity of the -documents offered by Harris. The court agreed that the documents looked suspicious and declined to admit them in evidence.' The State obtained a criminal history for Harris which indicated that he was arrested in Dallas on March 30, rather than March 3. Nevertheless, Harris steadfastly denied that he had altered the Dallas County documents in any fashion. The court agreed to delay a ruling on the revocation motion for seven days to give the State an opportunity to verify or refute the authenticity of the documents.

On July 3, Harris filed a pro se motion to recuse the judge alleging that she had “predetermined her punishment” as reflected by her comments during the January 30 and June 26 hearings and that he had filed a grievance against her with the State Commission of Judicial Conduct on June 12.

The judge declined to recuse herself and faxed the recusal motion to the presiding judge of the administrative judicial region. The presiding judge assigned the other district judge in Limestone County to hear the recusal motion. At the commencement of the recusal hearing, Harris informed the assigned judge that he wanted the assigned judge to recuse himself as well. The assigned judge delayed the hearing to allow Harris to file a proper recusal motion. In this second recusal motion, Harris also requested a continuance to obtain a record of the January 30 hearing to prove the recusal allegations. The assigned judge declined to recuse himself and referred the matter to the presiding judge, who assigned another judge to hear both recusal motions.

The second assigned judge heard the continuance motion and the recusal motion as to the judge presiding over- Harris’s revocation and denied both. He declared the second recusal motion (directed to the first assigned judge) to be moot.

The revocation hearing then resumed. The State informed the court that it had been unable to obtain admissible documentation to refute the authenticity of the Dallas County documents Harris offered at the prior hearing but that the March 3 date indicated in those documents is inconsistent with what Harris’s criminal history reflects.

The court found all the revocation allegations true except for the burglary allegation and imposed Harris’s original ten-year sentence.

Recusal Motion

Harris contends in his second issue that the assigned judge erred by denying his motion for continuance and his motion to recuse the judge presiding over his revocation hearing.

The State contends that Harris failed to preserve his complaint regarding the assigned judge’s ruling on the recusal motion because the motion was filed less than ten days before the hearing. The State is correct that a recusal motion generally must be filed at least ten days before trial or hearing. See Tex.R. Civ. P. 18a(a); Arnold v. State, 853 S.W.2d 543, 544-45 (Tex.Crim.App.1993); Madden v. State, 911 S.W.2d 286, 239 (Tex.App.-Waco 1995, pet. ref'd); accord De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004) (orig. proceeding). However, if the basis for recusal does not become apparent until later, then the defendant preserves the complaint by promptly filing the motion when the basis for recusal comes to light. See Rosas v. State, 76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Martin v. State, 876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.); see also Madden, 911 S.W.2d at 239 (issue not preserved where defendant became aware of possible grounds for recusal at punishment phase but raised issue for first time on appeal).

Here, Harris alleges three grounds for recusal: (1) the judge’s comments during the January 30 hearing, (2) the June 12 judicial grievance he filed, and (3) the judge’s comments during the June 26 hearing. Harris was well aware of the first two grounds more than ten days before the June 26 hearing. However, he did not seek a recusal on these grounds until after the June 26 hearing. Thus, he has failed to preserve the issue of whether the judge should have been recused because of her comments during the January 30 hearing or because of the June 12 grievance. See Arnold, 853 S.W.2d at 544-45; Madden, 911 S.W.2d at 239.

Because Harris’s recusal motion was untimely with regal’d to the judge’s comments during the January 30 hearing, the assigned judge did not abuse his discretion by denying Harris’s continuance motion, by which he sought a delay to obtain a record of the January 30 hearing.

We review the denial of a recusal motion under an abuse-of-discretion standard. See Wesbrook v. State, 29 S.W.3d 103, 120 (Tex.Crim.App.2000); Rosas, 76 S.W.3d at 774. Recusal because of bias is justified when “the movant has provided facts sufficient to establish that a reasonable man, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge.” Kemp v. State, 846 S.W.2d 289, 305 (Tex.Crim.App.1992); accord Rosas, 76 S.W.3d at 774. We will not reverse a recusal decision which lies “within the zone of reasonable disagreement.” Kemp, 846 S.W.2d at 306 (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g)); Rosas, 76 S.W.3d at 774; accord Wesbrook, 29 S.W.3d at 120-21.

Harris alleges without elaboration in his recusal motion that the fact that the judge had “predetermined” his sentence is “self evident in the recent hearing on June 26, 2003.” At the recusal hearing, Harris testified that the judge “seemed to be agitated” with him during the June 26 hearing and cut off his testimony at one point.

The lion’s share of Harris’s recusal allegations stem from the comments the judge made during the January 30 hearing. As stated above, Harris did not timely seek a recusal on the basis of these comments. In view of the limited evidence from the June 26 hearing offered to show a basis for recusal, we cannot say that the assigned judge abused his discretion by denying the recusal motion. See Rosas, 76 S.W.3d at 775-76. Accordingly, we overrule Harris’s second issue.

Predetermination Of Revocation And Sentencing

Harris contends in his first and third issues that he was denied due process because the judge had predetermined that she would revoke his community supervision and impose the original sentence regardless of any mitigating evidence he may present.

Such complaints must be preserved for appellate review. See TexJRApp.. P. 33.1(a)(1); Hull v. State, 67 S.W.3d 215, 217-18 (Tex.Crim.App.2002); Teixeira v. State, 89 S.W.3d 190, 192 (Tex.App.-Texarkana 2002, pet. refd). As with Harris’s recusal allegations, the primary source for his contention that the judge had predetermined that she would revoke his community supervision and impose the original sentence is the record of the comments the judge made in the January 30 hearing. However, Harris did not voice any objection to the judge presiding over the revocation hearing until he filed his recusal motion, seven days after the June 26 hearing in which the court heard virtually all the evidence on the matter. Therefore, Harris’s objection was not timely, and these issues have not been preserved. See Tex.R.App. P. 33.1(a)(1); Hull, 67 S.W.3d at 217-18; Teixeira, 89 S.W.3d at 192. Accordingly, we overrule Harris’s first and third issues.

The Revocation Decision

Harris contends in his fourth issue that the court abused its discretion by finding that he faded to report on March 3, 2003 because the State failed to rebut the evidence he offered to show that he was incarcerated in Dallas County on that date. He contends that a finding on this allegation is critical because the parties agreed at the January 30 hearing that his community supervision would not be revoked unless he committed “new violations.”

In examining the portions of the record Harris cites from the January 30 hearing, we find no agreement between the parties that his community supervision would be continued if Harris had no “new violations.” Instead, the record reflects that the parties agreed to leave the revocation motion pending for 90 days to allow Harris an opportunity to abide by the conditions of community supervision. As his own attorney stated, “[I]f he doesn’t [comply] there would be a hearing set so we could all go forward on the Motion to Revoke.”

To overturn a revocation order, a defendant must successfully challenge each finding on which the revocation is based. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978); Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Smith v. State, 790 S.W.2d 366, 367 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). A defendant cannot challenge a revocation finding on an allegation to which he pleaded “true.” See Cole v. State, 578 S.W,2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979); Atchison v. State, 124 S.W.3d 755, 758 n. 4 (Tex.App.-Austin 2003, pet. ref'd); Moore v. State, 11 S.W.3d 495, 498 n. 1 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Harris pleaded “true” to the two of the four allegations in the revocation motion. He does not challenge the court’s findings on these two allegations. Therefore, we cannot say that the court abused its discretion by revoking Harris’s community supervision. Accordingly, we overrule his fourth issue.

Separate Punishment Hearing

Harris contends in his fifth issue that the court erred by failing to hold a separate punishment hearing after deciding to revoke his community supervision. However, he did not preserve this issue for review by objection during the revocation hearing or by motion for new trial. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App.1999); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (per curiam); Liggett v. State, 998 S.W.2d 733, 736 (Tex.App.-Beaumont 1999, no pet.). Accordingly, we overrule Harris’s fifth issue.

We affirm the judgment.

      . The State's motion erroneously alleged that Harris had received deferred adjudication. Nevertheless, the parties treated the pleading as a revocation motion. We refer to this motion hereinafter as a revocation motion.

      . Apparently Harris himself brought the documents to the hearing, and his attorney did not know about their existence beforehand. Harris's own attorney acknowledged to the court that the documents "looked funny.”

      . The recusal procedures set out in Rule of Civil Procedure 18a apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004) (orig. proceeding).


source: Caselaw Access Project

author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    Delair WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00216-CR.
    Court of Appeals of Texas, Waco.
    Feb. 23, 2005.

      Stan Schwieger, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Delair Watson of burglary of a habitation and assessed his punishment at thirteen years’ imprisonment. Watson contends in two issues that the evidence is legally and factually insufficient to prove that he attempted to commit the offense of sexual assault when he entered the habitation in question. Because we conclude that the evidence is factually insufficient, we will reverse and remand.

The indictment alleges that Watson entered Jennifer Romo’s apartment without her consent “and attempted to commit ... the felony offense of sexual assault.” Romo testified that she saw Watson “kind of jogging” toward her porch on the afternoon in question. He came to her screen door and tried to talk with her. He told her that he knew her, but she suggested to him that he was probably thinking of the teenage girls who lived next door. As they talked, Watson opened the door, stepped halfway in, and put his foot between the door and the doorjamb so she couldn’t close the door. Romo noticed that Watson had an erection at this time. She told him to leave, and he did.

Romo then went into another room, but she heard the screen door open again only a few seconds later. She found Watson standing in her kitchen and started yelling at him to get out. Watson just stood there without saying anything. He then dropped his shorts to his ankles, exposing himself in an aroused state. Romo grabbed a butcher knife, pointed it at him, and told him to get out. Watson grabbed the end of the knife. Romo twisted the knife, and Watson let go. He pulled up his shorts and left. Watson walked over and sat down on the porch of an apartment across the street. Romo called her father who in turn called the police. The police arrested Watson sitting on the porch across the street from Romo’s apartment.

Watson contends in two issues that the evidence is legally and factually insufficient to prove that he intended to commit sexual assault while in Romo’s apartment.

In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App.2003). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004).

“The elements of criminal attempt are: (1) a person (2) with specific intent to commit an offense (3) does an act amounting to more than mere preparation (4) that tends to effect the commission of the offense intended.” Herrin v. State, 125 S.W.3d 436, 440 n. 5 (Tex.Crim.App.2002) (quoting Yalch v. State, 743 S.W.2d 231, 233 (Tex.Crim.App.1988)); see also Tex. Pen.Code Ann. § 15.01(a) (Vernon 2003). Here, Watson’s “specific intent” is at issue.

[A] jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of wounds inflicted on the victims.

Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999) (Meyers, J., concurring)).

Consistent with this rationale, courts have examined the words and actions of defendants when determining whether the evidence is legally and/or factually sufficient to prove an intent to commit a sex crime during the course of a burglary. In some cases, courts have found the evidence legally sufficient where the defendant used force against the complainant. See Sharpe v. State, 881 S.W.2d 487, 489-90 (Tex.App.-E1 Paso 1994, no pet.); Moone v. State, 802 S.W.2d 101, 104 (Tex.App.-Austin 1990, no pet.); Williams v. State, 699 S.W.2d 368, 369-70 (Tex.App.-Houston [1st Dist.] 1985, no pet.); see also Hackbarth v. State, 617 S.W.2d 944, 945-46 (Tex.Crim.App.1981) (evidence legally sufficient to prove attempted rape where defendant used force against complainant in addition to attempting to disrobe her, exposing himself, and making provocative statements).

Our research has disclosed one case in which the court found the evidence legally and factually sufficient to prove burglary with intent to commit indecency with a child because of the manner in which the defendant touched the child complainant. See Sendejo v. State, 26 S.W.3d 676, 678 (Tex.App.-Corpus Christi 2000, pet. ref'd).

In another line of cases, courts have found the evidence legally or factually sufficient to prove burglary with intent to commit a sex crime because of the words uttered by the defendant. See Denison v. State, 651 S.W.2d 754, 758 (Tex.Crim.App.1983) (legal sufficiency); Moore v. State, 54 S.W.3d 529, 539-40 (Tex.App.-Fort Worth 2001, pet. ref'd) (factual sufficiency); Sharpe, 881 S.W.2d at 489-90 (legal sufficiency); see also HackbaHh, 617 S.W.2d at 945-46 (legal sufficiency).

Conversely, in some cases it has been determined that the defendant’s words and actions were legally insufficient to prove that he intended to commit a sex crime during the course of a burglary. Thus, in Walls v. State> the Court of Criminal Appeals determined that the evidence was legally insufficient where the defendant entered the complainant’s store “with his pants open and his privates exposed, walked to a point approximately six feet from where the prosecutrix was seated watching television, apparently saw prose-cutrix’ companion Pauline Anderson, said ‘Oh’ and left the store.” 164 Tex.Crim. 470, 299 S.W.2d 953, 953 (1957).

In Baldwin v. State, the Court found the evidence legally insufficient where the defendant

came upon the porch of Roy Bernard’s home, located in the City of Houston, cut the screen over the window of the room in which Mr. Bernard’s daughter, Mrs. Loraine Scalise, was sleeping. The young woman was aroused by the noise he made in his attempt to enter her room, and she noticed [him] crouched at the window.

153 Tex.Crim. 19, 216 S.W.2d 985, 986 (1949). Scalise then went to her mother’s room, her mother retrieved a pistol, and they went to the porch. They saw the defendant “coming in a run from an alley.” Id. The Court found this evidence lacking because

[t]here is not any fact or circumstance in the record which shows what his purpose was in attempting to enter the house by force. To arrive at the conclusion that he intended to commit rape, we would be required to enter the field of speculation. The evidence is equally as cogent to show that he attempted to commit burglary with the intent to commit theft as that of rape. The burden rested upon the state to prove beyond a reasonable doubt that his intent was to commit rape. In this respect, the evidence falls short of meeting the requirements of the law.

Id.

In Hays v. State, the Court found the evidence legally insufficient where the complainant awakened to find a family friend (who was staying in the home while the complainant’s husband was away) “bending over her and holding her wrist.” 86 Tex.Crim. 469, 217 S.W. 938, 938 (1920). The Court found the evidence insufficient because the defendant did not attempt to conceal his identity, did not threaten the complainant, and did not use force against her. Id.

The facts of Watson’s case are closest to those in Walls. However, Watson did reach out and grab the end of Romo’s knife. When considered together with the fact that Watson was exposing himself while aroused, a rational trier of fact could infer that he intended to overpower Romo and sexually assault her when he grabbed the end of the knife. Thus, the evidence is legally sufficient, and Watson’s first issue is overruled.

However, it must also be noted that Watson did not say anything threatening or anything to indicate he intended to sexually assault Romo; his conduct in grabbing the knife could also be viewed as an effort to defend himself; he did not flee the apartment complex; and Romo’s father testified that her emotional state at the time was one primarily of anger and confusion rather than fear.

Under these facts, the evidence which tends to support the verdict “ ‘preponderate[s]’ in favor of conviction but still [is] insufficient to prove the elements of the crime beyond a reasonable doubt.” See Zuniga, 144 S.W.3d at 485. Thus, the evidence is factually insufficient, and Watson’s second point is sustained.

The judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Let me see if I’ve got this straight.

A man enters a house after he has been told to leave. When the woman in the house confronts him in her kitchen she screams, telling him to get out. Instead of leaving, he drops his pants revealing his erect penis. The woman, being in the kitchen, grabs a knife (good for her). Rather than flee, the intruder grabs the end of the knife. The woman twists it in the intruder’s hand, he releases it, pulls up his pants and leaves.

And from these facts a person is not rationally justified in finding beyond a reasonable doubt that the intruder entered the home with the intent to sexually assault the woman? I guess my response to the majority opinion — ‘You have got to be kidding” — makes me irrational, along with 12 jurors and the trial court.

When I line up the same cases the majority does, I see the following:

1. Use of force against victim— grabbed the knife.
2. Failure to immediately retreat even after challenged — unlike Walls.
3. Exposed himself — unlike Baldwin or Hays.

I dissent.

      . The indictment also alleges that Watson committed the offense of sexual assault, but it is undisputed that he did not. Accordingly, we focus on the allegation that he attempted to commit the offense.

      . Section 15.01(a) provides, "A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Tex. Pen.Code Ann. § 15.01(a) (Vernon 2003).

      . The majority fails to comply with Goodman v. State, 66 S.W.3d 283, 286-87 (Tex.Crim.App.2001).


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    Shannon James WHEAT, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00048-CR.
    Court of Appeals of Texas, Waco.
    Feb. 23, 2005.

      Richard E. Wetzel, Austin, for appellant.
    Bill R. Turner, Brazos County Dist. Atty., Douglas Howell III, Brazos County Asst. Dist. Atty., Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   MEMORANDUM OPINION

BILL VANCE, Justice.

Appellant, Shannon James Wheat, was convicted on a three count indictment. In front of the jury, Wheat pled guilty to counts one and three alleging indecency with a child (two different victims), and he pled not guilty to count two alleging sexual assault with the same victim and offense-date as count three. The guilt-innocence phase of count two followed. Wheat was convicted by the jury on all three counts. After a punishment hearing, the jury assessed punishment at seven years and a fine of $5,000 on the first count, 15 years and a $5,000 fine on the second count, and eight years and a $5,000 fine on the third count. The trial court cumulated the three sentences.

Wheat appeals in six issues: (1) error in failing to provide admonishments required by the Texas Code of Criminal Procedure article 26.13 to ensure voluntariness of Wheat’s guilty pleas to the first and third counts; (2) abuse of discretion in denying a motion for severance of the second count from the first and third counts; (3) error in refusing a severance of count two from counts one and three as a matter of law; (4) error in refusing to submit a charge instructing the jury regarding double jeopardy relating to punishment for the second and third counts; (5) denial of his right to a pre-sentence report before the trial court cumulated the three sentences; and (6) error in cumulating the sentences on the third count and first count.

We will sustain issue two, reverse the three convictions, sever count two from counts one and three, and remand for a new trial on count two and a new punishment hearing on the guilty pleas to counts one and three. Based on issue two, we need not address issues three, four, and six. We note that the State admitted error in issues one and five; however, we will not perform a harm analysis on these issues because we reverse the judgments for another reason.

PROCEDURAL BACKGROUND

Wheat was indicted in a three count indictment: (1) on or about June 1, 2001, indecency with a child, J.C.; (2) on or about June 1, 2001, aggravated sexual assault with a child, J.W.; and (3) on or about June 1, 2001, indecency with a child, J.W. Tex. Pen.Code Ann. § 21.11 (Vernon 2003), § 22.011 (Vernon Supp.2004-05). Wheat intended to plead guilty to counts one and three. Prior to trial, Wheat sought a severance of count two from counts one and three on the basis that hearing such pleas in the same trial would prejudice his opportunity to defend against count two, in which he intended to plead not guilty. Tex. Pen.Code Ann. § 3.04(c) (Vernon 2003). The trial court denied the motion for severance. The guilty pleas to counts one and three were heard in front of the jury. Next, the same jury heard the guilt-innocence phase of count two. The jury was then charged and found Wheat guilty on the three counts. This same jury assessed punishment for the three counts, and the judge cumulated the three sentences.

FACTUAL BACKGROUND

Wheat was the lead athletic trainer at Livingston High School. He offered to take student trainers to his grandmother’s farm to work for a day and make some money. Often they did not return the same day so they would stay overnight in a hotel. J.W. testified that Wheat would give him pills to prevent him from snoring, and he would fall asleep quickly. J.W. testified that Wheat put his mouth on J.W.’s penis on four occasions, and there was hand or oral contact on 30 different occasions. J.W. also testified that he told the officer that the oral contact may or may not have been a dream. The defense presented evidence of count one and other offenses committed by Wheat to demonstrate a common scheme of touching and not oral contact: (1) J.C. testified that "Wheat took him on a trip, gave him a pill at the motel, and touched J.C.’s penis, but there was no oral contact; (2) J.F. testified that Wheat took him on a trip, attempted to touch J.F.’s penis, but there was no contact with Wheat’s mouth; and (3) T.H. testified that Wheat took him on a trip, touched T.H.’s penis, but Wheat made no contact with his mouth.

ISSUE TWO: SEVERANCE

Standard

Texas Penal Code section 3.04(c) states: The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b)(2) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

Tex. Pen.Code Ann. § 3.04(c). Thus, this section provides for a discretionary severance only in the event the trial court determines the defendant or the state would be unfairly prejudiced by a joinder of offenses. Id. We review a denial of a discretionary severance under an abuse of discretion standard. See Howard v. State, 888 S.W.2d 166, 170-71 (Tex.App.-Waco 1994, pet. refd).

Arguments

Wheat argues that if the trial court had granted the severance: (1) the jury would not have learned of the indecency offenses involving J.C. and J.W. until the punishment phase, if any, of the trial on count two; (2) Wheat would not have been placed in the unique position of presenting his own extraneous offenses as a defense to the offense charged in count two (i.e., Wheat says he was compelled to present such evidence as a defense to count two); (3) extraneous offenses involving J.F. and T.H. would not have been presented during the guilt-innocence phase as defensive evidence; and (4) Wheat’s presumption of innocence on count two would not have been unfairly prejudiced. Wheat asserts that in the absence of a severance he “was placed in the untenable position of either giving up his right to plead guilty or giving up his right to contest guilt to a different offense charged in count two.” He argues that “[h]e did neither and suffered the consequences of unfair prejudice by join-der of the three offenses.” Wheat also argues that the trial court should have conducted the statutorily-mandated unitary guilty plea proceeding on counts one and three.

The State relies on Salazar v. State and argues that Wheat was not unfairly prejudiced by the denial of the motion to sever, because it is “likely” that the testimony of the victims in counts one and three would have been admissible to refute Wheat’s defensive theory even if the cases had been tried separately. See Salazar v. State, 127 S.W.3d 355, 365 (Tex.App.-Houston [14th Dist.] 2004, pet. refd). The State claims that Wheat’s defensive theories were: (1) attacking the memory of the victim in count two; (2) attacking the detective’s interview with the victim as being suggestive; and (3) offering testimony of other victims to support the theory of no oral contact by Wheat, only touching.

Relevant Law

1. Discretionary severance under section 3.04(c)

We found two related eases regarding discretionary severance under section 3.04(c). We will review these cases; however, we note at the outset that neither of the cases involved any guilty pleas and thus do not directly address the issue of whether denying a motion to sever cases involving both guilty and not guilty pleas under section 3.04(c) is an abuse of discretion.

In Salazar v. State, a motion to sever was denied for four counts of aggravated sexual assault against four victims, and appellant argued that the denial was unfairly prejudicial against him. Salazar, 127 S.W.3d at 365. The appellant’s defense consisted of: (1) denying that the conduct occurred; (2) suggesting that the female victims concocted the allegations to hide the fact that appellant caught two of them doing something (of a sexual nature) they should not have been doing; (3) claiming that the allegations were the result of suggestive questioning by investigators; and (4) presenting evidence of appellant’s good character. Id. The court noted that “[i]t is well-established that evidence of other crimes may be admitted if it rebuts a defensive theory.” .Id. (citing Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.2003), and Wolfberg v. State, 73 S.W.3d 441, 443 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd)). The court held:

Therefore, even if the cases had been tried separately, it is likely that in each case the testimony of the other victims would have been admissible to refute the defensive theories that the complainants concocted the story and that the allegations were the result of suggestive questioning .... Accordingly, we find that the trial court could have reasonably found that joinder of the cases was not unfairly prejudicial against appellant; thus, the court did not abuse its discretion in trying the cases together.

Id. at 365-66 (emphasis added).

The court in Matthews v. State followed Salazar and found the denial of a motion to sever did not unfairly prejudice the appellant in a case involving ten indecency-with-a-child charges and one aggravated sexual assault charge. Matthews v. State, 152 S.W.3d 723, 730-31 (Tex.App.-Tyler 2004, no pet. h.). In Matthews, appellant’s defensive theory was that the allegations against him were concocted to extort the proceeds of an insurance check from him, or otherwise, as a result of lack of parental attention, anger, resentment, or general exposure to familial dysfunction. Id. at 731. The court held:

[E]ven had Appellant’s cases been tried separately, it is probable that the testimony of the other victims would have been admissible to refute the defensive theory that the complainants for whatever reason, concocted the story... .We conclude that the trial court could have reasonably found that joinder of the cases was not unfairly prejudicial against Appellant. Therefore, we hold that the trial court did not abuse its discretion in trying the cases together.

Id. at 731 (emphasis added).

2. Bifurcation

Section 2(a) of article 37.07 of the Texas Code of Criminal Procedure states:

In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.

Tex.Code CRiM. PROC. Ann. art. 37.07 § 2(a) (Vernon Supp.2004-05). The Texas Court of Criminal Appeals has stated:

Prior to the 1965 Code of Criminal Procedure all trials before the court or jury regardless of plea were unitary trials; that is, the issues of guilt and punishment were submitted at the same time. A bifurcated trial procedure was authorized in the 1965 revision of the Code of Criminal Procedure. The bifurcation statute provides, “In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.” The bifurcation statute “is applicable only to pleas of not guilty before a jury.” The statute “has no application to a trial before the court on a plea of not guilty.”

Barfield v. State, 63 S.W.3d 446, 449-50 (Tex.Crim.App.2001) (footnotes omitted and emphasis added). Thus, once a guilty plea has been entered, the trial is not to be bifurcated, but rather a unitary procedure is to be used, regardless of whether the guilty plea is entered before a trial judge or a jury. Ricondo v. State, 634 S.W.2d 837, 841 (Tex.Crim.App.1982).

Relevant Record Excerpts

During the hearing on the motion to sever, Wheat’s attorney argued that Wheat would be prejudiced if his client has to say “Yes, I’m guilty of this, yes, I’m guilty of that, but, no, I’m not guilty of this other offense.” Wheat’s attorney also argued for unitary proceedings on the guilty pleas. He stressed that not only did he not want the jury to hear the guilty pleas to counts one and three, but he also said that “there may be bad reputation witnesses, there may be other bad acts that come in.” The court considered hearing the trial on the guilt-innocence phase of count two first, hearing the guilty pleas on counts one and three outside the presence of the jury, and then regardless of the verdict on count two, have the jury assess punishment. Wheat’s attorney argued, and the court agreed, that “if this jury is going to hear everything, then we’ve got to voir dire on everything [including the full range of punishment].” The court concluded: “I think that inasmuch as Counts Two and Three are so intrinsically tied together, and inasmuch as I think that there is a strong likelihood that Count One could be — I mean, I’m not foreclosing the issue — but could be offered under 404(B), even as to Counts Two and Three only, if we were to try Count Two separately. I’m disinclined to grant the motion to sever. That will be overruled.... ”

During voir dire, Wheat’s attorney stated:

Unlike most trials, in this case we have multiple counts. And unlike most trials, in this case, you’re going to hear that Shannon is pleading guilty to two of those counts. Now there is going to be one count that is going to be for you to decide whether the Government proves its case beyond a reasonable doubt.

During Wheat’s opening statement, his attorney stated:

Nobody is standing here telling you there was never any contact — -improper contact — and that’s why my client has pled guilty to those two charges.
The question here is, though (1) Has the government proved beyond a reasonable doubt that there was contact between Shannon Wheat’s mouth and [J.W.J’s penis?
What we’re going to do is a little unusual, but we’re going to call for you to listen to some other persons who were student trainers that my client had contact with, some of whom were improper contact with, and I think you’re going to see that there was a common thread among these folks and that was that Shannon Wheat — I’m not defending this, please don’t misunderstand me— but Shannon Wheat would do similar kinds of things.
And what he would do is he would touch their penis; some on the outside of their clothing, some on the inside of their clothing. And that’s important, I think, when you make a determination based on what you’ve heard as to wheth- - er or not Shannon Wheat had oral contact with [J.W.].

Analysis

-When defensive theories may change, as we believe they could when a motion to sever separate offenses with guilty and not guilty pleas is denied, we cannot apply the analysis used in Salazar and Matthews, where the courts considered whether it was “likely” (Salazar) or “probable” (Matthews) that the testimony of the other victims would have been admissible to refute a defensive theory. See Salazar, 127 S.W.3d at 365-66; Matthews, 152 S.W.3d at 730-31. We cannot know: (1) what the defensive theory would have been; (2) what objections would have been made to evidence of other offenses; and (3) whether evidence of other offenses would have been admitted, had the severance been granted and Wheat not been confronted with how to handle offenses to which he had pled guilty. Thus, we must consider whether Wheat was unfairly prejudiced when the trial court denied his motion to sever. Tex. Pen.Code Ann. § 3.04(c).

Prior to voir dire and hearing of the pleas, the trial judge was informed that Wheat was seeking a severance because he intended to plead guilty to counts one and three and it would be prejudicial for the jury to hear his guilty pleas along with count two. The trial judge eventually allowed the State to tell the potential jurors that Wheat intended to plead guilty to counts one and three. The trial judge also heard the guilty pleas in front of the jury, which forced Wheat to use an “unusual” defensive theory. Once the trial judge was informed that Wheat intended to plead guilty to counts one and three, he should have conducted unitary proceedings on those two counts. Wheat was unfairly prejudiced on count two by the unauthorized bifurcated trial on the guilty pleas for counts one and three. See Ricondo, 634 S.W.2d at 841.

We find that denial of a severance of these counts was unfairly prejudicial to Wheat. See Tex. Pen.Code Ann. § 3.04(c). Therefore, we hold that the trial court abused its discretion in trying the three counts together in a bifurcated proceeding. See Howard, 888 S.W.2d at 170-71. Counts one and three should have been severed from count two, and a unitary proceeding should have been conducted for counts one and three. We sustain issue two.

CONCLUSION

Having sustained issue two, we need not address issues three, four, and six, nor perform a harm analysis for the errors admitted by the State in issues one and five. We reverse the three convictions, sever count two from counts one and three, and remand the cause for a new trial on count two and a new punishment hearing on the guilty pleas to counts one and three. See Tex.Code CRiM. PROC. Ann. art. 44.29 (Vernon Supp.2004-05).

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

One of the most difficult standards of review to apply is the abuse-of-discretion standard. It is an easy test to state and most people have some notion of what it means just by the label. It becomes a bit more problematic, however, when you actually try to define the standard. It serves no useful purpose here to catalog all the different ways that the test has been described to try to actually define how to objectively test a trial court’s decision by an abuse-of-discretion standard. Probably the most complex test is the one defined by Justice John Powers in Landon v. Jean-Paul Budinger, Inc., from the Austin Court of Appeals in 1987. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934-937 (Tex.App.-Austin 1987, no writ). The test is cumbersome and time consuming. Parties do not brief in light of this description of the test because courts seldom attempt to use it. On the other end of the spectrum of descriptions for the abuse-of-discretion standard of review would be something like, “the trial court’s decision is within the zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

And oh how easy it is to find an abuse-of-discretion when the reviewer simply disagrees with the trial court. Indeed, if the case law on the issue that defines the test gets in the way, go around it. Never mind there was no specific objection made, and no argument that told the trial court what the complaint on appeal would be: the failure to sever will make me present a defensive theory I would not otherwise pursue involving presenting other extraneous bad acts that may prejudice my client on the guilt or innocence determination on count two.

In this case, “[ajppellant argued that prosecution in a single criminal action would present a myriad of problems including unitary trial, bifurcated trial, prejudice, the decision whether to testify, and difficulty on voir dire.” Appellant’s brief, pg. 12. Appellant ultimately contends “[i]f the trial court had granted the severance, appellant would not have been placed in the unique position of presenting his own extraneous offenses as a defense to the offence charged in count two.” Appellant’s brief, pg. 12. If Wheat had made this specific argument in connection with the motion for severance, the trial court would have been informed of the specific problem that Wheat now wants to argue on appeal. This argument was not made as a ground for the severance. The trial court made its ruling on the severance motion based on the information and complaints then before it. We should review it based on the state of the record at the time the ruling was made.

From my review, it seems pretty clear the defense was going to be the same whether these counts were severed or not. Defense counsel never argued otherwise at trial. Now on appeal, he expands his grounds for severance to include a complaint not made at trial. I would review the ruling on the motion based upon the grounds and complaints actually presented under the relevant case law and hold the trial court did not abuse its discretion.

I would then proceed to review the other issues raised by Wheat. But a single vote will not change the result; so I will yield to a more timely response, note my dissent, and await the time with patience until I can review the remaining issues. In the Interest of S.A.P., 135 S.W.3d 165, 177-178 (Tex.App.-Waco 2004) (Gray, C.J., dissenting), rev’d, 156 S.W.3d 574 (Tex.2005).

      . The court instructed the jury to find him guilty of counts one and three.

      . This count was initially aggravated sexual assault, but it was modified after voir dire to sexual assault.

      . Section 3.03(b)(2) includes offenses under Section 21.11 (counts one and three) and 22.011 (count two).

      . He concedes this evidence would have been admissible then under Texas Code of Criminal Procedure article 37.07 section 3(a)(1).


author: DIXON W. HOLMAN, Justice.

text:
    Raymond Domonic COZZI Jr., Appellant, v. The STATE of Texas.
    No. 2-04-028-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 24, 2005.
    Rehearing Overruled March 24, 2005.

      Richard Alley, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Asst. Criminal District Atty., and Chief of the Appellate Section and Sharon A. Johnson, Asst. Criminal District Atty., Fort Worth, for Appellee.
    Panel F: LIVINGSTON, DAUPHINOT and HOLMAN, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Raymond Domonic Cozzi, Jr. appeals from the trial court’s judgment adjudicating him guilty for the offense of assault on a public servant. In three points on appeal, Appellant complains that: 1) his plea of guilty was the result of ineffective assistance of counsel and the trial court should not have proceeded to adjudication of guilt and sentencing; 2) the trial court erred and abused its discretion by failing to conduct a hearing on his motion for new trial; and 3) the trial court erred and abused its discretion by failing to grant his motion for new trial. We affirm.

BACKGROUND

On April 18, 2002, Appellant was indicted for the felony offense of assault on a public servant. On January 21, 2003, Appellant entered into a plea bargain in which he agreed to plead guilty and be placed on deferred adjudication community supervision for a period of five year’s. The trial court followed the plea bargain agreement and accepted his plea of guilty. Pursuant to the agreement Appellant was placed on community supervision bound by certain terms and conditions for a period of five years. On November 4, 2003, Appellant filed a notice of appeal that our court held was untimely and dismissed the appeal for want of jurisdiction. Thereafter, the State filed a petition to proceed to adjudication, alleging that Appellant had violated certain terms and conditions of his community supervision. On December 1, 2003, Appellant filed a motion to amend the terms and conditions of his community supervision pursuant to articles 11.072 and 42.12 of the code of criminal procedure, seeking a writ of habeas corpus, and asking the trial court to remove certain conditions of his community supervision. See Tex.Code CRiM. PROG. Ann. arts. 11.072 and 42.12. On January 5, 2004, the trial court held a hearing on the State’s petition to proceed to adjudication. At the hearing, Appellant pled “not true” to the allegations contained in the State’s petition. Over Appellant’s objection, the court took judicial notice of the contents contained in a report filed by staff at the SAFPF program. The court found that Appellant had violated terms of his community supervision, adjudicated his guilt, and sentenced him to seven years’ imprisonment. Appellant appealed from ■ the trial court’s judgment. Our court dismissed his appeal for want of jurisdiction, noting that the trial court had not denied Appellant’s application, but had dismissed it, and holding that Appellant did not have the right to appeal from a dismissal of his application. On January 5, 2004, Appellant filed a notice of appeal. On January 6, 2004, Appellant filed a motion for new trial.

Appellant’s Points on Appeal

In his first point, Appellant argues that his plea of guilty was the result of ineffective assistance of counsel; therefore, the trial court should not have proceeded to an adjudication of guilt and sentencing. Because Appellant’s complaint arises from his original plea, he was required to raise the issue in an appeal from the trial court’s order placing him on deferred adjudication community supervision. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999); Webb v. State, 20 S.W.3d 834, 835-36 (Tex.App.Amarillo 2000 no pet.). An appeal on these grounds should have been commenced within thirty days of the trial court’s “unadjudicated judgment.” See Tex.R.App. P. 26.2(a)(1); Garcia v. State, 29 S.W.3d 899, 901 (Tex.App.-Houston [14th Dist.] 2000, no pet.). No timely notice of appeal was filed from that judgment. Therefore, we dismiss Appellant’s first point for want of jurisdiction.

In his second and third points, Appellant argues that the trial court erred and abused its discretion by failing to conduct a hearing on Appellant’s motion for new trial and by failing to grant a new trial. The rules of appellate procedure require that a party “present” his motion for new trial to. the trial court within specified time limits. Tex.R.App. P. 21.6 (providing generally that defendant must present motion for new trial to trial court within ten days of its filing); Carranza v. State, 960 S.W.2d 76, 79 (Tex.Crim.App.1998) (holding that appellant had burden not only to file motion for new trial, but also to “present” it to the trial court); see also Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993); Amaro v. State, 970 S.W.2d 172, 173-74 (Tex.App.-Fort Worth 1998, no pet.). According to Carranza, the term “ ‘present’ ... means the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court.” 960 S.W.2d at 79.

Here the record establishes that Appellant timely filed his motion for new trial, but it does not show that he actually delivered the motion for new trial to the trial court or otherwise brought the motion to the trial court’s attention or gave the trial court actual notice of the filing. Accordingly, Appellant forfeited these complaints for review because he failed to preserve error. Tex.R.App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 339 (Tex.Crim.App.2004). Therefore, we overrule his second and third points.

Conclusion

We dismiss Appellant’s first point for want of jurisdiction and, having overruled his second and third points, we affirm the trial court’s judgment.

      . See Cozzi v. State, No. 2-03-00459-CR, 2003 WL 22966275 (Tex.App.-Fort Worth Dec. 18, 2003, no pet.) (not designated for publication).

      .The trial court signed a judgment stating that because of the imposition of sentence, Appellant's application for writ of habeas corpus is moot and is dismissed.

      . See Ex parte Cozzi, 138 S.W.3d 454, 455 (Tex.App.-Fort Worth 2004, pet. ref d).

      . The trial court certified that it had granted Appellant the right to appeal.

      . We note that the clerk’s record contains a docket entry that states, "motion for new trial filed,” but this alone is not sufficient to show presentment. See Amaro, 970 S.W.2d at 174 n. 2 (citing Reyes, 849 S.W.2d at 815).