Qualley v. State , 2006 Tex. Crim. App. LEXIS 1007 ( 2006 )

HERVEY, J.,

concurring in which KEASLER, J., joined.

I agree with the Court that any error in denying appellant Moore a severance under the “previous admissible conviction” portion of Article 36.09, Tex.Code CRiM. PROC., was harmless because appellant Qualley’s previous conviction was not admitted. See Qualley/Moore v. State, 206 S.W.3d 624, 637-38 (Tex.Cr.App. Nos. PD-1971-04 and PD-1976-04, delivered this date). Moore also claimed that the trial court’s failure to grant him a severance prejudiced him by preventing him from using Qualley’s prior conviction to show Qualley’s identity as the one who killed the victim and to explain why Moore would falsely confess to the police. The Court decides that Moore procedurally defaulted the latter claim and that the former claim is without merit because Qualley’s prior conviction was not admissible to show Qualley’s identity. See Qualley/Moore, 206 S.W.3d at 629-30, 630-31, 637-38. I would decide that Moore procedurally defaulted both of these claims by not asserting them until the middle of trial. See id. I otherwise join the Court’s opinion.