# Warmowski v. State

> Texas Court of Appeals, 4th District (San Antonio) · January 8, 1992 · 818 S.W.2d 505

URL: https://www.frixlaw.com/law-library/cases/9774066

## Case

- **Full name:** John P. WARMOWSKI, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 4th District (San Antonio)
- **Decided:** January 8, 1992
- **Citations:** 818 S.W.2d 505; 1991 WL 244891
- **Precedential status:** Published
- **Opinion:** Dissent by Peeples
- **Judges:** Chapa, Peeples, Garcia
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774066

## Opinion text

PEEPLES, Justice,
dissenting.
I would hold that the harmless-error rule applies and that the court’s erroneous failure to sever the two drug cases was harmless beyond a reasonable doubt.
The State concedes that the court should have severed the two cases. Under §§ 3.01 and 3.02 of the penal code, the methamphetamine and cocaine offenses were parts of the same criminal episode and could be consolidated. But even though the two offenses were properly consolidated, § 3.04 gave appellant the right to have them severed. No one defends the failure to follow the mandatory statute.
The real question is whether this error requires automatic reversal without even considering whether it could possibly have harmed appellant. In my view, TEX. R.APP.P. 81(b)(2) requires a harmless-error analysis. The majority follows Wedlow v. State, 807 S.W.2d 847 (Tex.App.—Dallas 1991), pet. ref'd per curiam, 814 S.W.2d 750 (Tex.Crim.App.1991), 1 which held that failure to grant a motion to sever is reversible error per se. Id. at 851-52 . I disagree with that holding. In Wedlow the trial court consolidated and tried together two offenses that happened at completely different times and places. The aggravated robbery occurred at 4:00 a.m. at an apartment complex; the burglary of a habitation occurred at 6:45 a.m. at a house near a trucking company. The court of appeals held that harmless-error analysis does not apply to cases that should have been severed. Nevertheless, the court stressed that Wedlow had to defend against two separate and distinct crimes involving two different complainants: “To many jurors, two complainants are more believable than one.” Id. at 852. The court said that the allegation of two distinct and different crimes instead of one might vary the defense entirely, from jury selection to summation, and that the failure to sever therefore tainted the whole process. See Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989) (harmless-error review should focus on the integrity of the process, not the correctness of the outcome).
The Wedlow court held in the alternative that the error was harmful under TEX: R.APP.P. 81(b)(2).
Perhaps the process in that case was tainted because appellant had to defend against two completely different charges brought by two different complainants. But if harmless-error analysis is impossible, as the Wedlow court held, it makes more sense to say that the record does not establish that the error was harmless beyond a reasonable doubt, as rule 81(b)(2) requires, than to say that harmless-error analysis is inappropriate altogether.
Here, in contrast to Wedlow, the facts of the two offenses were identical: appellant was charged with possession of the two substances in plain view at the same instant in time, one of which happened to be methamphetamine and the other, cocaine. That is totally different from trying two crimes against different complainants committed at different times in different places.
I would decline to follow Wedlow for another reason: it did not cite or discuss the controlling authority in this area, Ponder v. State, 745 S.W.2d 372 (Tex.Crim.App.1988), which is very much on point. In Ponder the court held that improper join- *511 der of aggravated sexual assault and aggravated robbery charges — which took place three hours apart — was harmless error. The court held first that such error was not automatically reversible error and that harmless-error analysis applied. Id. at 373-74 . The court then observed that appellant was not subjected to multiple convictions and that “the evidence of both offenses was admissible since the offenses occurred in the same continuing course of criminal behavior, to-wit: a single criminal transaction.” Id. at 374 . Wedlow cannot be fairly reconciled with Ponder . Contrary to the majority’s suggestion, the mandatory or discretionary nature of the rule violated has nothing to do with whether its violation harmed a defendant.
It is true that some mandatory procedural rules “cannot be subjected to a harm analysis in any meaningful manner, because the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error.” Sodipo v. State, 815 S.W.2d 551, 554 (Tex.Crim.App.1990) (denial of ten-day continuance in violation of TEX.CODE CRIM.PROC.ANN. art. 28.-10(a)) (quoting Roberts v. State, 784 S.W.2d 430 (Tex.Crim.App.1990)). 2 See also Smith v. State, 648 S.W.2d 695 (Tex.Crim.App.1983) (denial of right to jury shuffle, granted by article 35.11). But the violation of another mandatory provision was subjected to ordinary harmless-error analysis. See Roberts v. State, 784 S.W.2d 430, 435-38 (Tex.Crim.App.1990) (severance granted but agreed order of trial denied in violation of article 36.10). The court has said recently that it has not yet decided whether all mandatory statutes are immune from harmless-error analysis. See Sodipo, at 554; opinion of Roberts v. State, 784 S.W.2d at 435 .
The majority cites Overton v. State, 552 S.W.2d 849 (Tex.Crim.App.1977), and Waythe v. State, 533 S.W.2d 802 (Tex.Crim.App.1976), for the notion that failure to sever upon request is reversible error per se. But those cases were decided before TEX.R.APP.P. 81(b)(2) was adopted in 1986. And Overton involved one trial of two aggravated robberies, which apparently occurred “on different dates, under different circumstances, with different accomplices.” 552 S.W.2d at 849 . Waythe involved four separate forgeries. Those situations are a far cry from the case before us — one transaction in which two different drugs were possessed.
The record shows beyond a reasonable doubt that appellant was not harmed by the consolidation of the cocaine and methamphetamine cases. If the two cases had been tried separately, evidence of the cocaine would have been admissible in the methamphetamine trial as res gestae to show the context of the offense. See Rogers v. State, 774 S.W.2d 247, 257 (Tex.Crim.App.), ce rt. denied, 493 U.S. 984 , 110 S.Ct. 519 , 107 L.Ed.2d 520 (1989); Ponder v. State, 745 S.W.2d 372, 374 (Tex.Crim.App.1988); Sifford v. State, 741 S.W.2d 440, 441 (Tex.Crim.App.1987); Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986); Mann v. State, 718 S.W.2d 741, 743-44 (Tex.Crim.App.1986), cert. denied, 481 U.S. 1007 , 107 S.Ct. 1633 , 95 L.Ed.2d 206 (1987); Hoffert v. State, 623 S.W.2d 141, 143-15 (Tex.Crim.App.1981). The cocaine charge did not add one witness to the trial of this case, nor one bit of extra evidence about the crime scene or anything else. Of course, appellant was not punished for the *512 cocaine offense because the court granted his motion to arrest the cocaine judgment.
I would affirm.
. The per curiam opinion says that the court’s denial of review "does not constitute endorsement or adoption of the reasoning employed by the Court of Appeals.”
. The Sodipo court stated on rehearing that the discussion of art. 28.10(a) in its original opinion was improvident because the appellant was not entitled to a ten-day continuance inasmuch as the State was not entitled to amend the indictment. The court held that "in order to give effect to the full meaning and intent of Article 28.10, which is written with clarity and is not ambiguous, the error [in allowing the State to amend the indictment over the defendant's objection on the day of trial but before trial commenced] should not be subjected to a harm analysis.” Id. at 556 , (opinion on rehearing delivered June 12, 1991). I do not read this language to mean that the court has decided to reverse, without regard to harmfulness, whenever a mandatory statute is violated. Two weeks later, in Beebe v. State, 811 S.W.2d 604, 605 (Tex.Crim.App.1991), the court quoted with approval the statement in its original Sodipo opinion, quoted in the text, which suggests that the inquiry is whether the appellate record will permit a meaningful assessment of harm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774066. Public record. Not legal advice.