Brandon Okeith Shaw v. The State of Texas--Appeal from 283rd District Court of Dallas County

Opinion filed May 24, 2007

In The

Eleventh Court of Appeals

__________

   Nos. 11-05-00265-CR & 11-05-00266-CR

________

   BRANDON OKEITH SHAW, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 283rd District Court

Dallas County, Texas

Trial Court Cause Nos. F-0400836-UT & F-0450399-UT

O P I N I O N

Brandon Okeith Shaw appeals his convictions by a jury in two causes of the offense of capital murder. The trial court assessed his punishment at life in the Texas Department of Criminal Justice, Institutional Division, with a finding of a deadly weapon in each case. Shaw contends in two issues that the trial court erred by denying his motion to sever and that the trial court improperly charged the jury at the guilt-innocence phase of the trial. We affirm.

Shaw urges in issue one that the trial court erred by denying his motion to sever. Shaw was tried together with Sheldon Roberts, a codefendant, after the trial court had severed Emmanuel Rogers, another codefendant, from the case. Shaw had moved to sever his trial from that of either of his two codefendants, stating that he anticipated that he would present evidence of an alibi defense while his codefendants, Rogers and Roberts, might place themselves at the crime scene at the time of the offense.

At the hearing on the motion to sever, Shaw introduced several statements made by Rogers, one of the two codefendants. His counsel argued that the statements were introduced to show that it would be prejudicial to Shaw to be tried together with Rogers. With respect to Codefendant Roberts, Shaw=s counsel argued, AAs far as the other codefendant, I mean, there=s no doubt he didn=t give a statement, so I don=t have anything to give you to show what his position is going to be and I can=t offer any conjecture on that point.@ He added, ABut I do know that Brandon Shaw=s trial should be severed from Emmanuel Rogers=[s] trial as a matter of law.@ He subsequently argued for severance from being tried together with Rogers because Rogers=s attorney was not available for trial the following Monday when the trial was set. At that time, the trial court denied Shaw=s motion with respect to both of the two codefendants. The State subsequently moved to sever Rogers. Thereafter, Rogers was tried separately and convicted for the offense of capital murder.

Prior to the joint trial of Shaw and Roberts, Roberts=s attorney stated that he intended to call Rogers to testify. At a pretrial hearing, Rogers testified that he would testify at trial that any statement he made implicating Shaw was not true but resulted from threats made to him by a detective that, if he did not give the statement implicating Shaw, the detective would make sure that he would die by lethal injection. Counsel for Shaw re-urged the motion to sever, stating that the admission of Rogers=s original statement for impeachment purposes, in which he said the offense was committed by Shaw, would be highly prejudicial to Shaw and would not be admitted were it not for the fact that Shaw and Roberts were being tried together. Roberts and Shaw were subsequently tried together.

Roberts did not call Rogers to testify at trial. Rick Berry, a detective who investigated the murders, testified over objection by Shaw=s counsel that Rogers, in his statement to Officer Berry, did not specifically say that Roberts was involved in the offense. The trial court did not allow Roberts to ask Officer Berry whether Rogers implicated anyone specifically or whether he implicated Shaw.

To establish prejudice with respect to a motion for severance, the defendant must show a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser curative measures, such as a limiting instruction. Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006).

As originally filed, Shaw=s motion to sever was presented on the basis that the codefendants= positions were mutually exclusive because he anticipated that they might place themselves at the scene of the offenses. At the initial hearing, the only codefendant shown to be placing himself at the scene was Rogers, whose case was severed prior to the beginning of the trial of Shaw and Roberts. No evidence was presented at that hearing showing any prejudice should Shaw be tried together with Roberts.

At the re-urging of the motion to sever prior to the trial with Roberts, the basis for prejudice urged by Shaw was that, if Rogers were to testify at trial, he could be impeached by showing that he initially implicated Shaw. As previously noted, Rogers did not testify. Therefore, if Shaw showed the necessary prejudice required to justify his motion to sever, he did not actually suffer the prejudice shown because Rogers did not testify.

Constitutional error is an error that directly offends the United States Constitution or the Texas Constitution without regard to any statute or rule that might also apply. Rodgers v. State, 111 S.W.3d 236, 247 (Tex. App.CTexarkana 2003, no pet.). Shaw urges that any error in denying his severance was a nonconstitutional error. With respect to nonconstitutional errors, we must disregard any nonconstitutional error, defect, irregularity, or variance that does not affect substantial rights. Tex. R. App. P. 44.2(b). Because Shaw did not suffer the prejudice he alleged in his motion to sever or as argued by him in either the first or second hearings on his motion, his substantial rights were not affected.

Shaw appears on appeal to rely on prejudice he contends was created when Roberts=s counsel asked Officer Berry if it were true that Rogers did not specifically say that Roberts was involved in the offenses. The basis for the alleged prejudice is that the jury would infer, from the fact that Shaw=s counsel would not ask Rogers a similar question, that Rogers must have implicated Shaw. Shaw=s counsel objected to Officer Berry=s testimony being offered but did not re-urge his motion to sever based upon the alleged prejudice. Consequently, the trial court never had the opportunity to consider the prejudice alleged on appeal by Shaw with respect to Shaw=s motion for severance at trial. We overrule Shaw=s first issue on appeal.

Shaw insists in issue two that the trial court erred when it included the word Akillings@ in the charge on guilt or innocence because it constituted an impermissible comment on the weight of the evidence. In the AEvidentiary Instructions@ part of the court=s charge, the charge stated:

You are instructed that you may consider all relevant facts and circumstances surrounding the killings, if any, and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense alleged in the indictment.

At trial, counsel objected to the wording of the charge on the basis that it was inflammatory, without making any reference to it being an impermissible comment on the weight of the evidence. Consequently, the issue presented here does not comport with the objection Shaw made at trial. Therefore, nothing is presented for review. Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990).

Even if the matter were preserved for review, Shaw argues that it was a comment by the trial court on the weight of the evidence because it informed the jury that the complainants were the victims of a killing by the accused, assuming that Shaw killed or murdered the complainants. There was no dispute at trial as to whether the complainants were killed or murdered. The dispute was whether either Shaw or Roberts was guilty of capital murder with respect to the killings as alleged. As we read the charge, it did not suggest in any way that Shaw had murdered or killed the complainants. We overrule issue two.

The judgments are affirmed.

May 24, 2007 PER CURIAM

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.