John Thomas Allen v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00164-CR ______________________________ JOHN THOMAS ALLEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 29345-B Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION While taking items from a duplex not their own, John Thomas Allen and Joshua Freeman were discovered by a neighbor. The neighbor called police, who promptly caught and arrested both Allen and Freeman. Allen and Freeman were tried together before a jury, and each was convicted, Allen for the offense of burglary of a habitation. Allen's sole point of error on appeal asserts only that the trial court erred by jointly trying Allen and Freeman. Allen contends that, given Freeman's extensive criminal record, (1) the joint trial improperly prejudiced Allen, because at trial Freeman's prior convictions, and the resulting enhancement paragraph of Freeman's indictment, were read to the jury. As proof of prejudice, Allen points out he received a sentence near the top of his punishment range, while Freeman did not. (2) With two exceptions, the trial court has the discretion to try two or more defendants jointly or separately. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex. Crim. App. 2000). Severance is mandatory where one defendant has an admissible prior conviction and the person seeking the severance does not; otherwise, severance is not a matter of right, but rests within the sound discretion of the trial court. Garza v. State, 622 S.W.2d 85 (Tex. Crim. App. 1981) (op. on reh'g); Mendoza v. State, 61 S.W.3d 498, 505 (Tex. App.-San Antonio 2001), aff'd, 88 S.W.3d 236 (Tex. 2002); Loveless v. State, 800 S.W.2d 940, 945 (Tex. App.-Texarkana 1990, pet. ref'd). Since Allen did have prior convictions, the decision to try Allen and Freeman together was discretionary with the trial court. Mendoza, 61 S.W.3d at 502; see Patterson v. State, 783 S.W.2d 268, 270 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd). When an accused is not entitled to a severance as a matter of right, the denial of a severance motion by the trial court constitutes an abuse of discretion only when the movant satisfies the "heavy burden" of showing "clear prejudice." See Patterson, 783 S.W.2d at 270. An allegation that prejudice will result is not a sufficient showing of prejudice under Article 36.09 of the Texas Code of Criminal Procedure when the severance is discretionary. See id. An abuse of discretion occurs not when, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but when the trial court acted without reference to any guiding rules or principles. The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). In this case, since both defendants were shown to have criminal records, and especially since Allen was also shown to have a prior conviction, albeit at state jail felony level, for burglary of a building, we do not find that Allen was improperly prejudiced. Accordingly, we conclude the trial court did not abuse its discretion by trying the cases together. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: May 16, 2003 Date Decided: August 6, 2003 Do Not Publish 1. The record reflects that Freeman had two prior felony convictions (including one burglary of a habitation) and three prior misdemeanor convictions. Freeman's enhancement paragraph was for the burglary of a habitation. There were no enhancement paragraphs in Allen's indictment, but the record shows he had previously been convicted of two state jail felony charges, including burglary of a building. 2. Allen was sentenced to a term that was close to the top of his punishment range, while Freeman received a term in the middle of the range of punishment applicable to his charge. The ranges, however, were not the same. The maximum sentence for Allen was twenty years, of which he received eighteen, and the maximum sentence for Freeman was ninety-nine years or life, of which he received forty. This does not support Allen's contention of prejudice. t to Chapter 14 of the Texas Civil Practice and Remedies Code. This is confirmed by the docket sheet, a copy of which is attached to Jon's petition. (2) As Jon is clearly not entitled to a default judgment, the trial court did not violate a ministerial duty or abuse its discretion by not granting the requested default. Finding no basis for the issuance of the requested writ, the petition for writ of mandamus is denied. Donald R. Ross Justice Date Submitted: August 1, 2002 Date Decided: August 2, 2002 Do Not Publish 1. The United States Supreme Court has not announced a right to appointment of counsel in civil cases generally. However, the court has held an indigent person does have a due process right to appointment of counsel in certain civil cases. See, e.g., Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (certain proceedings involving termination of parental rights); In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (certain juvenile delinquency proceedings). In determining whether due process requires appointment of counsel for an indigent person in a civil case, the Supreme Court in Lassiter balances three factors-the private interests at stake, the government's interest, and the risk the procedures used will lead to an erroneous decision-against the presumption there is a right to counsel only where the indigent may lose his or her personal freedom. Lassiter, 452 U.S. at 27. Texas has created a statutory right to counsel in certain civil cases. See, e.g., Tex. Fam. Code Ann. § 51.10(f) (juvenile proceedings), § 107.013(a)(1) (Vernon Supp. 2002) (mandatory appointment of attorney ad litem for indigent parent opposing a suit to terminate the parent-child relationship). Texas law also gives district judges and constitutional county court judges discretion to appoint counsel for an indigent person in a civil case. Tex. Gov't Code Ann. §§ 24.016, 26.049 (Vernon 1988). A judge of a statutory county court is given "all other powers, duties, immunities, and privileges provided by law for county court judges." Tex. Gov't Code Ann. § 25.0004 (Vernon Supp. 2002). 2. Generally, docket sheets are not evidence. Rodriguez v. State, 834 S.W.2d 592, 595 (Tex. App.SHouston [1st Dist.]), pet. granted in part & ref'd in part; remanded in part on other grounds, 844 S.W.2d 744 (Tex. 1992). However, "[a] docket entry may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order. N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977) (citing Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939); Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937); Ex parte Rains, 113 Tex. 428, 257 S.W. 217, 220 (1923); Stark v. Miller, 63 Tex. 164 (1885)).