Opinion

Dion Delon Alexander v. State

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Feb 6, 1997
Status: Published
Cited by: 0 cases
Authority: More cited than 35.8%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00362-CR

Dion Delon Alexander, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 44,876, HONORABLE JOE CARROLL, JUDGE PRESIDING

This appeal is taken from a conviction for attempt to commit capital murder during

the course of committing or attempting to commit robbery (1) alleged and proven to have occurred

on December 2, 1993. The jury found appellant Dion Delon Alexander guilty, rejecting his "not

guilty" plea. The trial court assessed punishment at life imprisonment. Appellant was tried

jointly with co-defendant Tyrone Akito Harris. See Harris v. State , No. 03-95-00319-CR, this

day decided.

POINTS OF ERROR

Appellant advances seven points of error. Although not in chronological order,

appellant challenges the sufficiency of the evidence to sustain the conviction, contends that the

court erred in overruling both his "motion to suppress evidence" and his motion for severance,

and in allowing the prosecutor to interject facts into the case that were not in evidence. In

addition, appellant complains that the trial court erred in allowing unsworn testimony and, in

connection therewith, complains of the trial court's intervention and comments which he claims

deprived him of a fair trial under the Sixth Amendment to the United States Constitution.

SUFFICIENCY OF EVIDENCE

The challenge to the sufficiency of the evidence is found in the seventh point of

error. We shall commence our discussion with this contention in order to place all of appellant's

contentions in proper perspective.

Dalton Langford, the owner of D's Pawn Shop in Killeen, testified that on

December 2, 1993, he was at the store with his employee, Lorrie Lefler at about 6:45 p.m., near

closing time, he went into his office to do some book work, and Lefler began bringing the

bicycles on display outside into the store. After returning one bicycle, Lefler reported to

Langford that "three people were outside the building." She returned to her work. Langford went

to the store's counter and took out a loaded, but uncocked revolver. At this time, three black

males came into the store, one of them holding Lefler by the neck. One of the men yelled, Lefler

was shoved to the ground, and "they opened fire." Langford estimated that eight to twelve shots

were fired by the men. One shot grazed Langford's head and knocked his glasses off. One shot

grazed his ribs and another shot entered Langford's arm and elbow knocking him down. Other

shots hit a computer and various parts of the store. The men then ran. Langford never fired a

shot. He was able to tell Lefler to call 911 to notify the police. He did not get a good look at the

faces of the men and was unable to identify anyone as the men who he concluded were there to

commit robbery.

Lorrie Lefler testified that, as she began bringing the bicycles into the store, she

saw a man walking across the parking lot. She identified him as Tyrone Harris. Later, she heard

male voices from the side of the building. Lefler reported what she had heard and seen to

Langford. When she returned to bring a second bicycle inside, Harris grabbed her around the

neck, told her to get back into the store and to get down. As they entered the store, she could tell

two other men were with Harris. She heard one of the men yell that "he (apparently Langford)

has a gun," and the firing commenced. When it ended, the men fled from the store and Lefler

called 911. She later selected Harris's photograph out of a photographic spread or lineup. She

was not able to identify the other two men.

Officer Robert Hester of the Austin Police Department testified that on December

11, 1993, he stopped a vehicle in Austin because neither the driver nor the front seat passenger

was wearing seat belts as required by law. As the vehicle came to a stop, Officer Hester observed

that the front seat passenger made movements as if he was placing something under the front seat.

Officer David Socha arrived on the scene as a backup. Socha removed the front seat passenger

from the car while Hester removed the driver. A third man appeared to be asleep in the back seat.

The driver had no identification or driver's license and gave his name as Karl Dickens. It was

later shown that Dickens was Larry President. The front seat passenger gave his name as Tony

Rome when in fact he was Dion Alexander. The "sleeping man" gave his name as James Taylor,

but he was shown to be Tyrone Harris. Officer Hester searched under the front passenger seat

where Alexander had been seated and found a 9 millimeter Glock semiautomatic pistol. President

and Alexander were arrested, the vehicle impounded, and the pistol retained. Harris was released.

Alexander and President were released sometime the next day.

Killeen Police Officer Jack St. John testified that he investigated the scene at D's

Pawn Shop the night the offense occurred. State's exhibits 20 and 21 were identified as 9

millimeter shell casings found at the store. After St. John's conversation with one Donyell

Frederick, St. John contacted the Austin Police Department and obtained the 9 millimeter Glock

pistol found after the traffic stop on December 11, 1993. Russell Johnson, a firearm expert with

the Texas Department of Public Safety, test-fired the weapon and was of the opinion that it fired

the shell casings found at the pawn shop.

Marvin LaVell Rhynes, a/k/a LaVell Willis, testified that he was in Colorado at

the time of the alleged offense, but that in the summer of 1994 he was returned to the Bell County

Jail on a drug charge. There, he encountered Dion Alexander whom he had known previously.

Alexander told him that he (Alexander), along with Larry President, and a third man whose name

Rhymes could not recall, had committed the alleged offense at D's Pawn Shop, that they had gone

to the pawn shop to obtain jewelry and money by robbery, that a shoot-out occurred, and that they

left when they ran out of bullets. Alexander told Rynes he had wielded a .357 Magnum weapon,

and President fired a 9 millimeter weapon. Alexander told Rhynes that a woman was at the store

during the incident. Rhynes knew the location of the store from Alexander's conversation because

he had traded at D's Pawn Shop in the past. Alexander also informed Rhynes that shortly after

the offense, Austin police stopped the car in which he and his companions were riding and had

confiscated the 9 millimeter weapon. The other weapon was hidden in an Austin apartment and

was not recovered by the police. Rhynes reported his conversation with Alexander to Bell County

Officer Tim Steglich and gave a statement concerning the same. Rhynes denied that he had "cut

a deal" with any law enforcement authorities.

Nicole Broadway, age 20, testified that she had lived all her life in Killeen; that she

had a child by Donyell Fredrick; that she knew Tyrone Harris, Dion Alexander, and Larry

President; and that they and Frederick were associates, but she would not say that they were close

friends.

Donyell Frederick was a difficult witness for the State. He refused to take a formal

oath. He stated that he knew and associated with Harris, Alexander, and President, but that he

knew nothing about the alleged offense. He repeatedly claimed the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. He was granted

immunity by the trial court upon the request of the State but still refused to answer questions and

was held in contempt by the court. Neither Harris nor Alexander testified or offered any

evidence. They rested when the State rested its case at the guilt/innocence stage of the trial.

Appellant Alexander challenges the legal sufficiency of the evidence to support the

conviction. The standard for reviewing the legal sufficiency of the evidence is whether, viewing

the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have

found beyond a reasonable doubt the essential elements of the offense charged. Jackson v.

Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 , 61 L. Ed. 2d 560 (1979); Villalon v. State ,

791 S.W.2d 130, 132 (Tex. Crim. App. 1990); Skillern v. State , 890 S.W.2d 849, 879 (Tex.

App.--Austin 1994, pet. ref'd). The standard of review is the same in both direct and

circumstantial evidence cases. Geesa v. State , 810 S.W.2d 154 , 155 (Tex. Crim. App. 1991);

Herndon v. State , 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). In our review of the legal

sufficiency of the evidence, we must consider all the evidence which the jury was permitted,

properly or improperly, to consider. Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App.

1993), cert. denied , U.S. , 114 S. Ct. 1579 , 128 L. Ed. 2d 111 (1994); Rodriguez v. State ,

819 S.W.2d 871, 887 (Tex. Crim. App. 1991). In addition, the evidence must be measured

against the charge that was given to the jury. Jones v. State , 815 S.W.2d 667, 668 (Tex. Crim.

App. 1991); Skillern , 890 S.W.2d at 877 . In its jury charge, the trial court tracked the allegations

of the indictment and also charged on the law of parties. See Tex. Penal Code Ann. § 7.01 (West

1994).

The jury is the exclusive judge of the facts proved and the weight to be given to

the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). The jury is the judge

of the credibility of the witnesses, Adelman v. State , 828 S.W.2d 418, 421 (Tex. Crim. App.

1992), and is free to accept or reject any or all of the evidence presented by either party. Saxton

v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1987); Beardsley v. State , 738 S.W.2d 681, 684

(Tex. Crim. App. 1987). The reconciliation of evidentiary conflicts is solely within the province

of the jury. Heiselbetz v. State , 906 S.W.2d 500, 504 (Tex. Crim. App. 1995); Bowden v. State ,

628 S.W.2d 782, 784 (Tex. Crim. App. 1982). It is not the reviewing court's duty to disregard,

realign, or weigh the evidence. Mareno v. State , 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

Appellant Alexander argues that neither Langford nor Lefler could identify him as

being at the scene. This is true. Lefler did, however, place Harris at the scene in the company

of two other men. Nine days later, appellant, Harris, and President were together in a car that

was stopped for a traffic violation in Austin. A 9 millimeter pistol, later shown to have been used

in the offense, was found under the seat where Alexander was sitting after he had been seen

placing something under the seat. Alexander's argument that he was not connected with any of

the guns used in the offense is not correct. Alexander also overlooks Rhynes's testimony

describing Alexander's admissions that he committed the offense charged along with President and

another man, and that one of the guns used had been seized by the police in Austin. Other

evidence showed that the shell casings found had been fired by the 9 millimeter pistol seized.

Appellant asks that we not consider the testimony relating the 9 millimeter pistol because it was

the fruit of an illegal stop and seizure and that we disregard Frederick's unsworn testimony. As

noted earlier, the appellate court, in reviewing evidence sufficiency claims, must consider all of

the evidence presented whether properly or improperly admitted. See Fuller v. State , 827 S.W.2d

919, 930-31 (Tex. Crim. App. 1992); Nickerson v. State , 810 S.W.2d 398, 400 (Tex. Crim. App.

1991).

Viewing the evidence in the light most favorable to the jury's verdict, we conclude

that any rational trier of fact could have found beyond a reasonable doubt all the essential elements

of the offense charged. We overrule appellant's contention that the evidence was legally

insufficient to support the conviction.

Appellant also claims that the evidence is factually insufficient to sustain the

conviction. In Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996), the court

concluded that courts of appeals are vested with the authority to review fact questions in criminal

cases. The proper standard of review for factual sufficiency of the elements of the offense is the

one set forth in Stone v. State , 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely

filed). Clewis , 922 S.W.2d at 129 . This standard requires the court of appeals to view the

evidence without the prism of "in the light most favorable to the prosecution" and set aside the

verdict or judgment only if it is so contrary to the overwhelming weight of the evidence to be

clearly wrong and manifestly unjust. Id. at 129 . Appellant recognizes the standard, calls attention

to the same facts as in his challenge to the legal sufficiency of the evidence, but fails to discuss

just how the application of the standard would entitle him to the relief he seeks. See Tex. R. App.

P. 74(b). The evidence has been detailed and applying the Stone-Clewis standard we cannot say

that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and manifestly unjust. Appellant's contention is without merit.

UNSWORN TESTIMONY

In the third point of error, appellant contends that the "trial court erred in allowing

unsworn testimony to be heard at trial." See Tex. R. Crim. Evid. 603. The point of error refers

to Donyell Frederick, a witness for the State. Because the background here

underlies both points of error one and two, the facts will be examined in greater detail.

Rule 603 provides:

Before testifying, every witness shall be required to declare that he will testify

truthfully by oath or affirmation administered in a form calculated to awaken his

conscience and impress his mind with his duty to do so.

Tex. R. Crim. Evid. 603. This rule continues a traditional procedure. 1 Steven Goode, Olin Guy

Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal ,

§ 6.03 at 523 (Texas Practice 1993) (hereinafter Goode). As a rule, unsworn testimony is

inadmissible and is not legal evidence on which a judgment can be based. See 24 Tex. Jur. 3d,

Criminal Law , § 3264 at 651-52 (1982).

With this background, we turn to the facts of the instant case. Donyell Frederick

was more than the ordinary reluctant witness. When called by the State, his request to consult

with his attorney was granted. Upon being recalled with the jury in the box and his attorney

present, Frederick refused to be sworn by the trial court. He did not claim any religious beliefs

against swearing nor did he ask to be sworn in any particular manner. He quickly stated that he

had told the prosecutors that he was not going to testify, that he did not have anything to do "with

this case," and that his attorney had informed him that he did not have to testify. In response to

the trial court's inquiry as to whether he was claiming a privilege, he answered: "No, not really."

Thereupon, the trial court informed Frederick that everybody had an obligation to testify unless

a privilege was claimed; that Frederick would be required to tell the truth; that if he did not, he

could be punished for perjury; and that the State and the defense had a right to call him as a

witness.

The interrogation then commenced and the prosecutor elicited from Frederick his

name and that he lived in Killeen in the fall of 1993. Thereupon, an objection was made for the

first time that Frederick was not under oath. The objection was overruled and the interrogation

continued. Frederick acknowledged that he and Nicole Broadway had a young son. When asked

if he knew the defendants and Larry President, a second "lack of oath" objection was overruled.

Frederick answered: "We was associates. We knew each other. That is it." When inquiry was

made if he had told the Killeen police that his associates had admitted their participation in the

instant offense, another "no oath" objection was overruled, and the request to remove the jury was

denied.

The trial court again addressed Frederick, reminding him that he was subject to

perjury, and elicited from him that he knew the difference between telling the truth and not telling

the truth. When asked by the court if he would tell the truth, Frederick stated: "I don't know

nothing I can tell. You keeping asking me questions. The questions I can answer, I answer. The

answers I can't answer, I am not going to answer." The court concluded that Frederick

understood the perjury law. The record then reflects:

The Court: Well, let me just advise you, sir, you are required to tell the truth, the

whole truth and nothing but the truth. Do you understand that?

The Witness: Yes, sir.

The Court: Okay. Do you understand what the laws of perjury are in Texas and

that if you don't tell the truth that you can be punished for aggravated perjury for

not telling the truth?

The Witness: Yes, sir.

The interrogation resumed with the prosecutor asking basically the same

question--whether Frederick told Officer St. John that the defendants had admitted their

involvement in the instant offense. Frederick responded by claiming the Fifth Amendment's

privilege against self-incrimination. When Frederick denied any involvement in the instant

offense, the prosecutor informed him that he could not incriminate himself, but was refusing to

incriminate "the defendants." Frederick stated that he did not "know what happened in that

place," and took the "Fifth" in response to the same question repeatedly asked. When reminded

by the prosecutor that he "was under oath," Frederick expressed the subjective view that he was

not under oath, but acknowledged that he was subject to the laws of perjury. The same question

was repeated and Frederick took the "Fifth." The prosecutor then offered "immunity" to

Frederick with the court's approval. When the same question was repeated, the prosecutor stated

that he was laying a predicate for impeachment of the State's own witness. An objection ensued

along with a second request to remove the jury. The jury was finally removed. Thereafter, the

immunity issue was again raised and the trial court granted the prosecutor's offer of "total

immunity," both transactional and use immunity. Frederick was informed that he could no longer

rely on the Fifth Amendment. Frederick stated he would not accept immunity and was allowed

to confer with his attorney. Thereafter, when the same form of question was asked, Frederick

stated: "I am not going to testify. I am not going to say nothing." Frederick was then held in

contempt of court.

The trial court overruled a motion to instruct the jury to disregard Frederick's

testimony for the lack of an oath. The trial court, with appellant's approval, did instruct the jury

that Frederick had been granted immunity, had refused to testify, and had been held in contempt.

Frederick was not under oath when the first two questions were asked and answered

revealing only his name and his location in Killeen in the fall of 1993. There was no objection

to the questions. Thus, there was a waiver of any error. See Beck v. State , 719 S.W.2d 205,

211-14 (Tex. Crim. App. 1986); see also Castillo v. State , 739 S.W.2d 280, 298 (Tex. Crim.

App. 1987); Gonzales v. State , 748 S.W.2d 510, 511-12 (Tex. App.--Houston [1st Dist.] 1988,

pet. ref'd); Solis v. State , 647 S.W.2d 95, 98 (Tex. App.--San Antonio 1983, no pet.). The

testimony elicited was hardly incriminating.

After the objection to the lack of an oath, Frederick related only that he and Nicole

Broadway had a young son, that he knew the defendants and Larry President, and that they were

"associates." This evidence was cumulative of Broadway's testimony that related the same facts

without objection. The improper admission of evidence is not reversible error when the same

facts are proven by other unobjected-to testimony. Anderson v. State . 717 S.W.2d 622, 626-27

(Tex. Crim. App. 1986); Miranda v. State , 813 S.W.2d 724, 739 (Tex. App.--San Antonio 1991,

pet. ref'd).

The question of whether Frederick had informed the Killeen Police Department or

Officer St. John that appellant and his companions had admitted committing the instant offense

was never answered. Subsequently, the questioning by the court that resulted in Frederick

acknowledging that he was required to tell the truth and knew that he was subject to the laws of

perjury constituted an affirmation sufficient to meet the requirements of the law. The obligation

to tell the truth may take many forms. Rhea v. State , 705 S.W.2d 165, 170 (Tex.

App.--Texarkana 1985, pet ref'd). (2) While the procedure is not to be emulated, we conclude from

the point Frederick acknowledged his obligation to tell the truth, he was under "oath" within Rule

603. Thereafter, however, Frederick never answered the question repeatedly asked. In this

regard, we observe that Officer St. John testified, without objection, that he received information

from Frederick that led to the discovery of a 9 mm. weapon in Austin. On cross-examination,

appellant elicited from St. John that Frederick had connected appellant "to the case." See

Anderson , 717 S.W.2d at 626-27 . Failure to administer a timely oath or affirmation was harmless

error beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). The third ground of error is

overruled.

INTERVENTION BY THE COURT

The first point of error contends that the "trial court intervention and comments to

and concerning witnesses prejudiced appellant's right to a fair trial under the Sixth Amendment

to the United States Constitution." The stated point is somewhat difficult to follow as the

argument is directed to a single witness, Donyell Frederick, and to the actions of the prosecutor

as well as the trial court. Generally, appellant complains that the trial court trespassed on the

jury's right to assess the credibility of the witnesses. We are referred to fourteen pages of record

where appellant contends that Frederick was subjected to admonishments for exercising his Fifth

Amendment privilege against self-incrimination. Appellant fails to point out where the trial court

"intervened," where an objection was made to such "intervention," or where any ruling was

obtained on any objection. See Tex. R. App. P. 52(a). Nothing appears to have been preserved

for review. An appellate court is not required to examine the record page by page and speculate

on what appellant might have reference to on appeal. Frederick was a reluctant witness and

presented some difficulties for the trial court to resolve as reflected by our discussion concerning

the third point of error. After Frederick's appearance on the witness stand, the trial court, at

appellant's request, instructed the jury to disregard any instructions given by the court to

Frederick and any comments made. The court told the jury that legal rulings or comments were

not intended to have any influence on the jury who was the trier of facts. After the court's

instruction, appellant asked for no further relief.

Appellant relies upon Marlow v. State , 537 S.W.2d 8 (Tex. Crim. App. 1976), to

support his contention that the trial court's intervention deprived him of a fair trial. Appellant

does not explain how Marlow is controlling or even persuasive in the instant case. Marlow

involved a claimed error in the jury charge by assuming facts damaging to the defendant. Id. at

11 . Marlow is distinguishable on the law and the facts. It did not involve the Sixth Amendment.

Adding a multifarious flavor to the point of error, appellant also complains of

actions of the prosecutor. These matters are simply listed in the brief. To none of these matters

was an objection lodged so as to preserve error on appeal. See Tex. R. App. P. 52(a). Failure

to make a timely and specific objection waives any error. See Russell v. State , 665 S.W.2d 771,

778 (Tex. Crim. App. 1983), cert. denied , 465 U.S. 1073 (1984). The first point of error is

overruled.

TRIAL COURT COMMENTS

In the second point of error, appellant urges that the "trial court's comments were

an impermissible comment on the weight of the evidence which denied appellant his right to a fair

trial under the Sixth Amendment to the United States Constitution." Appellant relies upon article

38.05 which provides:

In ruling upon the admissibility of evidence, the judge shall not discuss or

comment upon the weight of the same or its bearing in the case, but shall simply

decide whether or not it is admissible; nor shall he, at any stage of the proceeding

previous to the return of the verdict, make any remark calculated to convey to the

jury his opinion of the case.

Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979).

To constitute reversible error in violation of the statute prohibiting the trial judge

from making any remark conveying to the jury his opinion of the case, the comment must be such

that it is reasonably calculated to prejudice a defendant's rights or to benefit the State. Williams

v. State , 834 S.W.2d 502, 505 (Tex. App.--Fort Worth 1992, pet. ref'd). To preserve any error

for review, there must be a timely and proper objection. Tex. R. App. P. 52(a). Mestiza v.

State , 923 S.W.2d 720, 724 (Tex. App.--Corpus Christi 1996, no pet.) (citing Minor v. State , 469

S.W.2d 579, 580 (Tex. Crim. App. 1981)); Lookingbill v. State , 855 S.W.2d 66, 77 (Tex.

App.--Corpus Christi 1993, pet. ref'd). The failure to object constitutes a waiver. Williams , 834

S.W.2d at 505 .

At the outset, appellant simply calls attention to "comments" mentioned in the first

point of error, but most of these involved the prosecutor, not the trial court. There was no

showing that any trial court comment was reasonably calculated to prejudice appellant's right or

to benefit the State. Moreover, there were no objections. Any error was waived.

Next, appellant directs our attention to a trial court's oral instruction to the jury.

When the court took a recess to work on the jury charge at the guilt/innocence stage, it told the

jury:

You must remember now that all the instructions that you have received up to

this point are still in effect, and you have to keep those in mind if you were to

violate any of the instructions at this point, it could still cause a mistrial or a

reversal or something like that after a waste of all this time. So be sure you

remember and follow all the instructions that you received. Don't talk to anybody

or let anybody talk to you or give you any information.

Appellant seizes upon the phrase "a waste of all this time" but fails to point out how

this constituted a comment on the weight of evidence when incorporated in the quoted jury

instruction. The jury instruction was not reasonably calculated to prejudice appellant's right, or

to benefit the State. Moreover, there was no objection to the jury instruction. Any error was

waived. The second point of error is overruled.

INTERJECTING FACTS NOT IN EVIDENCE

Appellant's fourth point of error contends that the "trial court erred in allowing the

prosecutor to interject facts not in evidence into the trial." Appellant lists four instances in his

brief. First, he asserts that the prosecutor testified for the witness. It was elicited from Officer

St. John that the photographs identified earlier as having been used in a "line-up" may not have

been the correct ones and that photographs with "the proper numbers" were outside the

courtroom. The prosecutor then asked and obtained the court's approval for the witness to step

outside the courtroom to secure the correct photographs. Second, it is claimed that at another

point the prosecutor led the witness. There was no objection to either the testimony or the

procedure so as to preserve error. Tex. R. App. P. 52(a).

Next, appellant complains that the prosecutor led the witness and testified for the

witness. We are given only record page references. When Nicole Broadway was testifying, two

objections that the prosecutor was leading the witness were overruled. In each situation, the

prosecutor had not completed the question. Despite the trial court's ruling, the questions were

rephrased and answered without objection. Rule 610(c) provides in part that leading questions

should not be used on direct examination of a witness except as may be necessary to develop his

testimony. Tex. R. Crim. Evid. 610(c). The rule clearly contemplates that some leading is

acceptable at the trial court's discretion. Myers v. State , 781 S.W.2d 730, 733 (Tex. App.--Fort

Worth 1989, pet. ref'd). Rule 610(c) has not changed the former case law that permitting leading

questions on direct examination is a matter within the sound discretion of the trial court and that

no abuse of discretion is shown unless the defendant can show that he was unduly prejudiced by

virtue of such questions. Newsome v. State , 829 S.W.2d 260, 270 (Tex. App.--Dallas 1992, no

pet.). Appellant has made no such showing.

Lastly, appellant claims that the prosecutor assumed the prerogative of the trial

court in admonishing the witness Frederick in front of the jury. Here again, we are merely

referred to a record page number. At one point when Frederick invoked the Fifth Amendment,

he was informed by the prosecutor that under the law a witness can only do so on the ground that

his testimony may tend to personally incriminate him in the commission of a crime. The objection

that such admonishment should come from the trial court was overruled. In this instance, as in

the others, appellant failed to show how the prosecutor improperly interjected facts not in

evidence. The fourth point of error is overruled.

MOTION TO SEVER

The fifth point of error asserts that the trial court erred in denying appellant's

motion to sever his trial from that of the co-defendant Harris. Appellant relies upon article 36.09

of the Code of Criminal Procedure which provides:

Two or more defendants who are jointly or separately indicted or complained

against for the same offense or any offense growing out of the same transaction

may be, in the discretion of the court, tried jointly or separately as to one or more

defendants; provided that in any event either defendant may testify for the other or

on behalf of the state; and provided further, that in cases in which, upon timely

motion to sever, and evidence introduced thereon , it is made known to the court

that there is a previous admissible conviction against one defendant or that a joint

trial would be prejudicial to any defendant, the court shall order a severance as to

the defendant whose joint trial would prejudice the other defendant or defendants.

Tex. Code Crim. Proc. Ann. art. 36.09 (West 1981) (emphasis added).

Severance formerly was always mandatory. Article 36.09 represents a substantial

departure from the former law in that the "right" to severance is now "extremely limited." See

Latham v. State , 656 S.W.2d 478, 480 (Tex. Crim. App. 1983). The statute has been interpreted

as dividing the grounds for severance into mandatory and discretionary ones. Robinson v. State ,

449 S.W.2d 239, 241 (Tex. Crim. App. 1969); 42 George E. Dix & Robert O. Dawson, Criminal

Practice and Procedure § 33.27 at 360 (Texas Practice 1995). The mandatory ground for

severance, that one defendant has "a previous admissible conviction," is applicable only when one

defendant has no prior criminal record or at least no prior admissible conviction and the co-defendant has a prior conviction that is admissible. If both defendants have prior admissible

convictions, the request for severance must be based on the fact that a joint trial would be

prejudicial. This latter ground is addressed to the sound discretion of the trial court. See Dawson

v. State , 477 S.W.2d 277, 279 (Tex. Crim. App. 1972); Robinson , 449 S.W.2d at 241 .

Appellant claims error in the denial of his motion to sever because co-defendant

Harris had a prior admissible conviction for aggravated robbery and because his defense was

totally inconsistent with that of the co-defendant. The record shows that appellant and Harris

were separately indicted for the same offense growing out of the same transaction. The State,

however, filed a motion for joinder of parties. Appellant followed by filing a motion to sever

based only on the mandatory ground for severance. The co-defendant also filed a motion to sever,

but that motion is not in this appellate record. See Tex. R. App. P. 50(d). These latter motions

were premature as there had not been a joinder of parties. They were obviously filed in

anticipation of a favorable ruling on the issue of joinder.

On January 27, 1995, a hearing on the State's motion for joinder was heard by

Judge Morris. The motion was taken under advisement. On February 17, 1995, another hearing

was conducted on the same motion before a different judge. At that hearing, it was pointed out

by the prosecutor that the co-defendant's prior conviction was on appeal and not admissible at

trial, and that appellant had been granted probation in his cases and that these convictions were

not final and would not be used at trial. The trial court took the matter under advisement and later

granted the State's motion to join the parties for trial. After the joinder, we find no hearing and

no ruling on appellant's motion to sever. (3)

On March 20, 1995, co-defendant Harris "reurged" his motion to sever,

particularly on the basis that a joint trial would be prejudicial to Harris because of appellant's

extraneous offenses. This record does not reflect when Harris originally "urged" his severance

motion. Under any circumstances, appellant joined Harris in the "reurging." Counsel for Harris

orally argued that the traffic stop in Austin and the finding of a weapon used in the instant offense

under appellant's seat would be admissible against appellant at a joint trial, and that this would

prejudice Harris and deny him a fair trial. Counsel acknowledged that the same evidence would

show that he was asleep in the car at the time of the traffic stop. No evidence was offered by

Harris or appellant before Harris's motion to sever was overruled. Unsworn assertions of fact

by an attorney are not regarded as evidence. See Loveless v. State , 800 S.W.2d at 940, 945 (Tex.

App.--Texarkana 1990, pet. ref'd). Article 36.09 provides for severance, and merely obtaining

an adverse ruling upon the issue is not sufficient to preserve error for review. Dix, § 33.26 at

359. The failure to present evidence is the most frequent basis for denial of severance. Id. ; see

also Snow v. State , 721 S.W.2d 943, 945 (Tex. App.--Houston [1st Dist.] 1986, no pet.); Rejski

v. State , 715 S.W.2d 832, 834 (Tex. App.--Houston [14th Dist.] 1986), overruled on other

grounds , Rutledge v. State , 749 S.W.2d 501 (Tex. Crim. App. 1988). Moreover, no error is

preserved for review when there is a failure to present evidence on the adopted motion of a co-defendant for severance. Hudson v. State , 794 S.W.2d 883, 885 (Tex. App.--Tyler 1990, no pet.).

At the first hearing on the State's motion for joinder, appellant did get the trial court to take

judicial notice of Harris's prior conviction, but this was a different and subsequent hearing. And

there was, as noted, no hearing on appellant's independent motion to sever.

Appellant urges for the first time on appeal that there was error in denying his

severance motion because his defense was totally inconsistent with that of the co-defendant. He

bases this claim on the fact that, at trial, Lefler was able to identify Harris as the man who

grabbed her around the neck and pushed her to the floor during the instant offense, but that she

was unable to identify appellant as one of the other two men. This contention was not a part of

appellant's motion for severance and never presented to the trial court. See Tex. R. App. P.

52(a). A trial motion or objection stating one legal basis may not be used to support a different

legal theory on appeal. Rezac v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

At trial, neither appellant nor Harris testified and their prior convictions were not

introduced before the jury. A trial court does not abuse its discretion when the allegations in the

severance motion and the proof, if any, offered in support thereof are not borne out by events at

trial. See Morales v. State , 466 S.W.2d 293, 296 (Tex. Crim. App. 1971); Williams v. State , 630

S.W.2d 866, 867 (Tex. App.--Houston [1st Dist.] 1982, no pet.). An appellate court will find an

abuse of discretion by the trial court in refusing a severance motion only when a defendant has

satisfied the "heavy burden" of showing clear prejudice. Metoyer v. State , 860 S.W.2d 673, 679

(Tex. App.--Fort Worth 1993, pet. ref'd); Loveless , 800 S.W.2d at 945. We find no abuse of

discretion in the overruling of the motion for severance.

SEARCH AND SEIZURE

In the sixth point of error, appellant contends that the trial "court erred in denying

appellant's motion to suppress evidence seized subsequent to a traffic stop." Appellant does not

direct our attention to any pretrial motion to suppress. See Tex. Code Crim. Proc. Ann. art.

28.01(6) (West 1989). We are directed only to a hearing at the trial on the merits outside the

presence of the jury apparently to determine the admissibility of evidence seized after the traffic

stop. (4)

At the hearing, Austin Police Officer Robert Hester testified that he was on patrol

on the night of December 11, 1993, which was nine days after the instant offense. At about 9:57

p.m., Hester observed a four-door Cadillac automobile with neither the driver nor the front seat

passenger wearing seat belts. Hester followed the vehicle and turned on the overhead lights of

his police vehicle. Officer Hester then saw the front seat passenger make a furtive movement by

reaching down with both hands to place something under the car seat. This furtive gesture caused

Hester concern for his own safety. The Cadillac stopped and a backup officer, David Socha,

arrived. Hester told Socha about the furtive movement. They approached the car cautiously for

they were in fear of their safety. The driver told Hester that his name was Karl Dickens (later

shown to be Larry President) and that he had no driver's license. Appellant was the front seat

passenger. He told Officer Socha that his name was Tony Rome. The men had no identification

and the officers were suspicious of the names given. A third man was asleep in the rear seat.

Appellant and President were removed from the car and frisked for weapons at the rear of the

vehicle. No weapons were found. Appellant claimed to live only a few blocks from the scene,

but he could not give the address. He admitted that he knew the other two men as he had been

"associated" with them in Bell County. The officers knew from police reports that men from the

Fort Hood--Bell County area had been coming into Austin committing robberies and engaging in

fighting, shootings, and other offenses. The officers discovered the car was not registered to any

occupants. Officer Hester had observed the furtive movement, knew one man was still in the car,

and based on his experience and training, had concern for his safety. He made a limited frisk or

"quick sweep" under the front seat and found the 9 millimeter pistol. After the finding of the

pistol, Hester arrested appellant for unlawfully carrying a firearm and arrested President for the

failure to have a driver's license. The third man was identified as co-defendant Harris. Harris

gave a false name at the time, but he was released because it was not believed that he had violated

any law. Appellant and President were taken to jail and the Cadillac was impounded. At the

conclusion of the hearing, appellant objected to the admission of the pistol solely on the ground

that no probable cause to search was shown. The objection was overruled. Officers Hester and

Socha both testified before the jury and the pistol was admitted into evidence.

STANDING

The State urges that appellant has no standing to complain of the search, "quick

sweep," or frisk that revealed the 9 millimeter weapon. Standing is an individual's right to

complain about an allegedly illegal governmental search, and thus to exclude evidence. The

purpose of both the Fourth Amendment to the United States Constitution, and article I, section

9 of the Texas Constitution "is to safeguard an individual's legitimate expectation of privacy from

unreasonable governmental intrusions." Richardson v. State , 865 S.W.2d 944, 948 (Tex. Crim.

App. 1993). An accused has standing to challenge the admission of evidence obtained by a

governmental intrusion only if he had a legitimate expectation of privacy in the place invaded.

Rakas v. Illinois , 439 U.S. 128, 143 (1978); Richardson , 865 S.W.2d at 948-49 ; Fuller v. State ,

829 S.W.2d 191, 202 (Tex. Crim. App. 1992).

The accused, because he has greater access to the relevant evidence, has the burden

of proving facts establishing a legitimate expectation of privacy. Calloway v. State , 743 S.W.2d

645, 650 (Tex. Crim. App. 1988); Wilson v. State , 692 S.W.2d 661, 667 (Tex. Crim. App. 1985)

(op. on reh'g). To carry this burden, the accused normally must prove: (1) that by his conduct,

he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve

something as private, and (2) that the circumstances existed under which society was prepared to

recognize his subjective expectation as objectively reasonable. Smith v. Maryland , 442 U.S. 735,

740 (1979); Richardson , 865 S.W.2d at 948-49 . The following nonexclusive factors are relevant

to the court's determination of whether the accused's subjective expectation was one that society

was prepared to recognize as objectively reasonable: (1) whether the accused had a property or

possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3)

whether he had complete dominion or control and the right to exclude others; (4) whether, before

the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether

he put the place to some private use; and (6) whether his claim of privacy is consistent with

historical notions of privacy. Calloway , 743 S.W.2d at 651 .

Turning to the instant case, we observe that mere occupancy in a vehicle in and of

itself, does not establish a legitimate expectation of privacy. Kelley v. State , 807 S.W.2d 810,

815 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). Simply because a person is a passenger

in a car with the permission of the owner is not determinative of whether he has a legitimate right

of privacy. Lewis v. State , 664 S.W.2d 345, 347 (Tex. Crim. App. 1984). If a passenger in a

vehicle fails to assert a possessory interest in the vehicle or the property seized, he does not have

a legitimate expectation in the vehicle. Meeks v. State , 692 S.W.2d 504, 510 (Tex. Crim. App.

1985). Appellant has not asserted any possessory interest in the Cadillac shown to be registered

to another and being driven by Larry President. He certainly does not assert any possessory

interest in the 9 millimeter weapon, the fruit of the search. Considering all the relevant factors

in Calloway , we find that appellant has failed to sustain his burden of proof and conclude that

appellant lacks standing to contest the search. United States v. Salvucci , 448 U.S. 83, 91-92

(1980); Kelley , 807 S.W.2d at 815 . A reviewing court may properly sustain the trial court's

ruling on the objection on the ground that the evidence failed to establish standing as a matter of

law even though the issue was not raised in the court below. Wilson , 692 S.W.2d at 671 ; see also

State v. Klima , 934 S.W.2d 109, 111 (Tex. Crim. App. 1996). The sixth point of error is

overruled.

The judgment is affirmed.

John F. Onion, Jr., Justice

Before Chief Justice Carroll, Justices Kidd and Onion; * Chief Justice Carroll Not Participating

Affirmed

Filed: February 6, 1997

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1988).

1. See Tex. Penal Code Ann. §§ 15.01 & 19.03(a) (West 1994). The current code is cited for

convenience because the code amendments effective September 1, 1994, have no substantive effect

on the instant offense. The applicable law is the law in effect at time of the offense. See Act of

May 8, 1975, 64th Leg. R.S., ch. 203, § 4, 1975 Gen. Laws 476, 478 ( Tex. Penal Code Ann.

§ 15.01 , since amended); Act of April 16, 1985, 69th Leg., R.S., ch. 44, § 1, 1985 Tex. Gen.

Laws 434 ( Tex. Penal Code Ann. § 19.03 (a), since amended).

2. Oaths and affirmations have long been used as a means of inducing witnesses to testify

truthfully. Goode , § 603 at 523. See Tex. Const. art. I, § 5, ; Tex. Code Crim. Proc. Ann. art.

1.17 (West 1977). "Oath is not defined by statute or rule nor is its form prescribed." 7A Michael

J. McCormick, Thomas D. Blackwell & Betty Blackwell, Title 2, § 70.02 at 193 (Texas Practice

1995). An oath has been described as "any form of attestation by which a person signified that he

is bound in conscience to perform an act faithfully and truthfully." Vaughn v. State , 177 S.W.2d

59, 60 (Tex. Crim. App. 1944). "Oath" includes affirmation. Tex. Penal Code Ann. §

1.07 (a)(32) (West 1994). Webster defines an affirmation as "a solemn declaration made under

the penalties of perjury by a person who conscientiously declines to take an oath." Webster Ninth

New Collegiate Dictionary 61 (1983). Rule 603 was modeled after the Federal Rules of Evidence.

The advisory notes to the Federal Rules of Evidence explain that an "[a]ffirmation is simply a

solemn undertaking to tell the truth; no special verbal formula is required." See Busby v. State ,

907 S.W.2d 949, 954 (Tex. App.--Fort Worth 1995, pet. ref'd).

3. Appellant directs our attention to a certain page of the statement of facts from the

pretrial hearing on the State's motion for joinder. No ruling on appellant's motion is

reflected there. It would have been premature if there had been such a ruling. Our

examination of the record does not reveal any ruling on appellant's motion to sever.

4. We have not found any trial objection in the record prior to the hearing regarding the

exclusion of evidence obtained after the traffic stop.

icle or the property seized, he does not have