Timothy Paslay v. The State of Texas--Appeal from 5th District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00112-CR
______________________________
TIMOTHY O. PASLAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 01F0281-005
Before Ross, Cornelius* and Grant,** JJ.
Opinion by Justice Cornelius

*William J. Cornelius, C.J., Retired, Sitting by Assignment
**Ben Z. Grant, J., Retired, Sitting by Assignment
O P I N I O N

Timothy O. Paslay appeals his conviction for failure to stop and render aid, a third degree felony. See Tex. Pen. Code Ann. 12.34 (Vernon 2003); Tex. Transp. Code Ann. 550.021 (Vernon 1999). This case was tried simultaneously with a separate charge for manslaughter after the State moved, without Paslay's objection, for the consolidation of the trials. The jury found Paslay guilty in each case and sentenced him to five years' imprisonment for each offense. The sentences were ordered to run concurrently. He appealed the convictions separately, but the parties combined the cases for purposes of briefing and oral argument. We address each appeal by way of separate opinion. (1)

Paslay presents two issues on the appeal of this case: first, he asserts that, because the evidence is legally insufficient to support the conviction for manslaughter, he was unfairly prejudiced in the punishment phase of this case by the evidence presented on the manslaughter charge; second, he contends the trial court erred by admitting evidence of a two-year-old unadjudicated domestic violence occurrence. For the reasons stated below, we affirm the trial court's judgment.

In his first issue, Paslay contends that, because the evidence to support his manslaughter conviction is legally insufficient, the impact of the evidence supporting the manslaughter conviction prejudiced the punishment phase of his trial in this case. In a separate opinion issued today, we find the evidence legally sufficient to support Paslay's conviction for manslaughter. See Paslay v. State, No. 06-02-00113-CR (Tex. App.-Texarkana Aug. 7, 2003, no pet. h.) (not designated for publication). Accordingly, we find that the jury's consideration of the evidence related to the manslaughter charge did not unfairly prejudice the jury's decision on punishment in this case.

Moreover, we conclude that Paslay has waived this issue. A month before trial, the State gave notice of its intent to consolidate Paslay's manslaughter and failure to stop and render aid cases for trial. See Tex. Pen. Code Ann. 3.02 (Vernon 2003) (consolidation and joinder of prosecutions). Paslay not only failed to object to the consolidation but, in fact, joined in support of the State's motion, even though Paslay had the statutory right to have the cases severed. See Tex. Pen. Code Ann. 3.04 (Vernon 2003) (defendant's right to severance); Wedlow v. State, 807 S.W.2d 847, 850-51 (Tex. App.-Dallas), pet. ref'd, 814 S.W.2d 750 (Tex. Crim. App. 1991) (per curiam) (discussing defendant's right to severance). A defendant waives his right to severance when he either joins or fails to object to the State's notice of consolidation. Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim. App. 1989).

The consolidation or severance of charges involves tactical decisions for both defendants and the State. When cases are consolidated, a defendant generally avoids the potential for cumulative sentences. See Tex. Pen. Code Ann. 3.03 (Vernon 2003) (except for specific offenses, sentences for offenses arising out of same criminal episode must run concurrently). This benefit, however, comes at a price. If a defendant is found guilty of one or both crimes, the jury will likely take into account evidence for both cases in determining punishment. By choosing severance, a defendant may also improve the chances of an acquittal by defending against only one charge at a time. Haight v. State, 103 S.W.3d 498, 505 (Tex. App.-San Antonio 2003, pet. filed). A defendant further avoids both the danger that the jury might label the defendant as a bad person deserving of punishment because of the other offenses he has committed and the risk that the jury will infer that the defendant committed the offense charged because he also committed the other offenses. Llamas v. State, 12 S.W.3d 469, 471-72 (Tex. Crim. App. 2000) (referencing 2 Wayne R. LaFave, Israel & King, Criminal Procedure Criminal Practice Series, 17.1(d) (2nd ed. Supp. 1999)).

In this case, Paslay joined the State in urging the trial court to consolidate the cases for trial. In so doing, he most assuredly was aware that the jury might consider evidence from the manslaughter charge in determining its punishment recommendation for Paslay's failure to stop and render aid. Implied in his decision to urge consolidation is the belief that the potential consequence of a greater sentence on either or both cases was offset by the benefit of avoiding consecutive sentences. A defendant who strategically elects to have cases consolidated waives the right to complain on appeal about any alleged prejudicial effect that evidence from one case may have on the punishment outcome in the other case when the evidence to support each conviction is sufficient. See Milligan v. State, 764 S.W.2d at 803. We overrule Paslay's first issue.

In his second issue, Paslay contends the trial court erroneously admitted evidence of a two-year-old unadjudicated domestic violence occurrence. We review the trial court's decision to admit or exclude evidence for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001).

During the trial on punishment, Texarkana Police Officer Gerald Palmore testified that he talked to Jennifer Paslay on January 6, 1998. Jennifer came into the police department to report being assaulted by her husband, the appellant, Timothy Paslay. Palmore stated Jennifer had visible bruises on her right cheek and a swollen area around her right eye. The State also offered into evidence two pictures taken of the victim's injuries on January 6, 1998. Paslay did not object to the pictures or to any portion of Palmore's testimony. To preserve for appellate review an objection to the admission of evidence, a defendant must first make a specific objection before the trial court. Tex. R. App. P. 33.1; Robinson v. State, 85 S.W.3d 338, 341 (Tex. App.-Texarkana 2002, pet. ref'd). Paslay's failure to object waived this issue for our review. We overrule Paslay's second issue.

 

The trial court's judgment is affirmed.

 

William J. Cornelius*

Justice

 

*Chief Justice, Retired, Sitting By Assignment

 

Date Submitted: July 10, 2003

Date Decided: August 7, 2003

 

Do Not Publish

1. For our opinion in the manslaughter case, see Paslay v. State, No. 06-02-00113-CR (Tex. App.-Texarkana Aug. 7, 2003, no pet. h.) (not designated for publication).