2011-05-12

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, James Terry Shelnutt, was convicted following a jury trial of the
murders of Robert Phillips and Phyllis Fassauer in Cause Nos. 59,233-D and 59,234-D,
respectively, and sentenced to confinement for life and fined $10,000 in each case.1 In
two issues, Appellant asserts:
(1) the trial court erroneously joined the two causes in a single trial and
(2) his counsel was ineffective for not presenting mitigation evidence during his punishment trial.

We modify the judgment in Cause No. 59,233-D to reflect the correct amount of court costs and, as modified, is affirmed. The judgment in Cause No. 59,234-D is affirmed.

Background

On February 4, 2009, a Potter County Grand Jury returned separate indictments
charging Appellant with two murders allegedly committed more than twenty-seven years
prior to the indictments. In Cause No. 59,233-D, Appellant was charged with
intentionally or knowingly causing the death of Robert Phillips on November 16, 1981,
by shooting him with a firearm. In Cause No. 59,234-D, Appellant was charged with
intentionally or knowingly causing the death of Phyllis Fassauer on November 16, 1981,
by shooting her with a firearm. The State's theory was that Appellant was guilty under
the law of parties because he solicited, aided, assisted, and encouraged William
Randall Bennett to kill Phillips, and that Bennett then also killed Fassauer in the course
of killing Phillips.

On February 22, 2010, Appellant filed a motion to quash and exception to the
substance of the indictment underlying Cause No. 59,234-D, the Fassauer murder. In
his motion, Appellant alleged that the State could not prove that Appellant "intentionally
or knowingly caus[ed]" the death of Fassauer under the law of transferred intent. On
February 24, 2010, the trial court held a pretrial hearing where the motion to quash was
addressed. During the hearing, Appellant's counsel asserted that the indictment
alleging Appellant murdered Fassauer was invalid because it was not supported by the
law existing at the time of the offense and there was no legal or factual basis to support
the State's allegations in that cause.[^2]

The trial court ultimately denied Appellant's motion to quash; however, during the
course of that hearing, the discussion turned to whether or not the two indictments
should be tried together. In response to the trial court's query as to whether they were
going to be tried together, Appellant's counsel responded: "No." Appellant's counsel
contended that evidence of Fassauer's murder would be prejudicial and unduly
aggravate any punishment Appellant might receive for Phillips's murder because
Fassauer was merely an innocent bystander. The State asserted that the cases should
be tried together because Fassauer's death and Phillips's death were inextricably
intertwined as a double homicide that occurred during the same criminal episode and
evidence of both murders would necessarily be introduced during the prosecution of
either indictment. Thereafter, the trial court made a determination that the two
indictments would be tried together even though the State had never filed written notice
of consolidation or joinder.

A four day jury trial commenced on March 1, 2010. The day trial commenced,
Appellant filed a motion entitled "Motion For Continuance" wherein he requested the
trial court to reconsider its ruling on Appellant's motion to quash the indictment and
further requested a continuance of Cause No. 59,234-D, the Fassauer murder, because
the State had not filed a motion for joinder or served notice as contemplated by section
3.02(b) of the Texas Penal Code.[^3]

Prior to denying Appellant's motion for continuance, the trial court asked
Appellant's counsel to explain the reason for the request and received the following
responses:

Your Honor, as previously that we argued (sic) in a pretrial motion to
quash the indictment in 59,234, there are two different and separate
indictments. We believe that because there was no motion for joinder
filed, or a notice as required of 30 days, there should be no joinder.

Yes, sir, and I'm only requesting a continuance in 59,234. I'm sorry if I
wasn't clear.

At the trial, the State presented testimonial evidence from a number of witnesses,
including Bennett, that Appellant solicited Bennett to kill Phillips in return for an ounce of
methamphetamine. Appellant gave Bennett a gun and drove him to a location near
Phillips's house where he let Bennett out of his car. After entering Phillips's house,
Bennett spoke to Phillips and his girlfriend, Fassauer, in the living room. He then went
into the kitchen to get a drink of water. When he returned to the living room, he first
shot Phillips from behind in the back of the head and then shot Fassauer because she
witnessed Bennett shooting Phillips. He then left the house. Shortly thereafter,

Appellant picked Bennett up while he was walking down the street as planned.[^4] Based
on this evidence, the jury returned a verdict of guilty on both indictments.
At the punishment trial, the State re-offered the evidence presented in its case-in-
chief and introduced a penitentiary package containing information on Appellant's four
previous felony convictions. Appellant's counsel presented no mitigation evidence.
During closing argument by Appellant's counsel, however, she argued that Appellant
was not present at the time the two persons were killed and Bennett was the shooter.
She indicated favorable character witnesses were unavailable because Appellant had
built his own prison using and selling drugs in a culture where survival was always an
issue. The jury assessed punishment for each indictment at confinement for life and a
$10,000 fine. The trial court's subsequent judgments sentenced Appellant to two
concurrent sentences of confinement for life and a $10,000 fine.[^5] This appeal followed.

Joinder / Severance

Appellant asserts the trial court erroneously joined the two causes in a single trial
because the State did not move to consolidate or give thirty days written notice that it
intended to consolidate pursuant to section 3.02(b). Appellant further asserts that
severance was mandated pursuant to section 3.04(a) because Appellant objected to a
joint trial. Appellant asserts he was harmed because the State's evidence underlying

[4]: Bennett's account of his agreement with Appellant, the murder and subsequent events taken by Appellant to hide his participation in the murders was corroborated by four other witnesses who overheard statements made by Appellant shortly after the murders occurred.

[5]: See Tex. Penal Code § 3.03(a) (West 2003) (absent an exception, when an accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single action, the sentences shall run concurrently).

Fassauer's murder was weak and the trial court did not give its legal analysis when it
denied Appellant's motion to quash.

The State contends Appellant waived his right to a severance or acquiesced to a
consolidated trial because Appellant never requested that the causes be tried
separately either orally or in a written motion. The State also asserts that, if error was
committed, it was harmless error because, if separate trials were had, Phillips's and
Fassauer's murders would be admissible in either action because the murders occurred
in the same criminal episode and, as such, constituted same transaction contextual
evidence.

Although we consider it doubtful whether Appellant affirmatively asserted his right
to severance prior to trial,[^6] we need not consider this issue because assuming
severance was raised and erroneously denied by the trial court, any error was
harmless. To judge the likelihood that harm occurred, we must consider everything in
the record, including all the evidence admitted at trial, the closing arguments, and the
juror's comments during voir dire. Llamas v. State, 12 S.W.3d 469, 471 (Tex.Crim.App.
2000). In order to properly conduct a harm analysis under Rule 44.2(b), an appellate
court need only determine whether or not the error affected a substantial right of the
defendant. See Tex. R. App. P. 44.2(b). To make this determination, appellate courts

[6]: Appellant's motions asked only that the trial court quash the indictment or grant a continuance of Cause No. 59,234-D. No written or oral motion for a separate trial was ever made. See Coleman v. State, 788 S.W.2d 369, 373 (Tex.Crim.App. 1990) (where appellant's motion did not apprise the trial court that it was a motion to sever offenses for separate trials, appellant's right to severance was waived). Furthermore, Appellant does not argue or explain why the right to a severance under § 3.04(a) should apply to the facts of this case. See § 3.04(c) (providing that § 3.04(a) does not apply to a prosecution of multiple offenses arising out of the same criminal episode).

must decide whether the error had a substantial or injurious affect on the jury verdict.
White v. State, 190 S.W.3d 226, 231 (Tex.App.--Houston [1st Dist.] 2006, no pet.).
Here, the evidence of Appellant's two offenses was admissible in a single trial as
contextual evidence.[^7] See Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App.
1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994) (where two
persons were kidnapped in Texas and later murdered in Oklahoma, kidnapping and
double murder were part of the same transaction contextual evidence); Nelson v. State,
864 S.W.2d 442, 498-99 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct.
1338, 127 L.Ed.2d 686 (1994) (where two women were simultaneously sexually
assaulted and one woman murdered, evidence of one victim's sexual assault and
murder was admissible in other victim's trial alleging sexual assault and attempted
murder as same transaction contextual evidence). Thus, the jury would have heard the
same evidence regardless of whether the offenses were tried separately in a different
trial or together in one. See Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.--El
Paso 2000, pet. ref'd). Accordingly, because the same evidence would be admissible
regardless of whether the offenses were tried separately or jointly, we hold that any
joinder / severance error did not affect a substantial right. See White, 190 S.W.3d at

[7]: Same transaction contextual evidence results when an extraneous matter is so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case incomplete or difficult to understand. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). "It is well settled that where one offense or transaction is one continuous episode, or another offense or transaction is part of the case on trial or blended or closely interwoven therewith, proof of all facts is proper." Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986). The purpose of admitting extraneous evidence as same transaction contextual evidence is to put the instant offense in context. Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).