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Click here for the full text of this decision FACTS:Whisper Cheyann Lynd, the victim, was the two-year-old daughter of appellant Qualley. Appellant Moore was Qualley’s live-in boyfriend. The three of them lived together in Moore’s home. After confessing to police that he caused the child’s death, Moore stated that Qualley had nothing to do with it. Moore and Qualley were jointly charged in a three-count indictment. Before trial, the defendants moved for severance. The state abandoned Count I as to Qualley. The trial court denied the motions for severance sometime before trial. The appellants were adverse to each other at several points during the trial. Moore and Qualley were both convicted of capital murder, and Qualley was convicted of injury to a child. Because the state did not seek the death penalty, the trial judge sentenced Moore and Qualley to life imprisonment on the capital-murder convictions. In addition, the trial judge sentenced Qualley to 40 years’ imprisonment on the injury-to-a-child conviction. The court of appeals concluded that the trial court erred in denying the appellants’ motions for severance, and it reversed the trial court’s judgments in both cases and remanded the cases for new trials. HOLDING:The judgment of the court of appeals in Moore’s case is reversed and the case is remanded to that court to address Moore’s remaining points of error. The judgment of the court of appeals in Qualley’s case is reversed, and the trial court’s judgment is affirmed. The court reviews Texas Code of Criminal Procedure Article 36.09, the severance statute. The main issue of contention is the prejudice ground for severance. The court decides to abandon the suggestion in Goode v. State, 740 S.W.2d 453 (Tex. Crim. App. 1987), that the existence of antagonistic defenses could by itself be sufficient to warrant a severance. The court agrees with the U.S. Supreme Court in Zafiro v. United States, 506 U.S. 534 (1993), that, as a matter of practical reality, mutually exclusive defenses are not necessarily prejudicial. Nothing in Zafiro conflicts with Texas Code of Criminal Procedure Article 36.09. The court adopts Zafiro’s construction: To establish prejudice, 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. Prejudice must be analyzed with regard to each defendant. Prejudice may be shown for one defendant but not another. This fact becomes clearer in a case involving more than two defendants, in which some defendants can be severed while others cannot. Even in a two-defendant case, however, the principle applies for purposes of reviewing the case on appeal. One defendant may be entitled to a severance while the other is not. While a severance at trial in that situation would in essence grant both defendants a separate trial, only the defendant entitled to the severance can obtain relief on appeal. Because Qualley’s request for severance was based entirely upon antagonistic defenses, her claim fails. Moore advanced another basis for severance that requires consideration. Moore contended at trial and on appeal that severance was required because of Qualley’s prior conviction. During the course of proceedings, three different rationales for this conclusion were advanced: 1. The prior conviction qualified as a “previous admissible conviction” mandating a severance under the statute, 2. The prior conviction was admissible to demonstrate Qualley’s identity as the perpetrator of the present offense and its exclusion at the joint trial thus prejudiced his defense, and 3. The prior conviction was admissible to show Moore’s motive to confess falsely and its exclusion at the joint trial thus prejudiced his defense. To the extent the court of appeals addressed Moore’s first rationale for a severance based on the prior conviction, it correctly concluded that any error was harmless because Qualley’s conviction was not admitted. Moore’s claim that Qualley’s prior conviction was admissible to show identity is without merit the trial court was well within its discretion to believe the offenses were not similar enough to warrant admission. That conclusion did not depend on whether the appellants were tried jointly or separately. Admissibility of the evidence under the motive claim, however, appears to vary with whether the appellants were tried together, but this claim was not timely presented. Moore clearly knew about his own motives before trial and, therefore, was obligated to raise before trial any claim based upon those motives. OPINION:Per curiam. CONCURRENCE:Hervey, J. filed a concurring opinion, in which Keasler, J., joined. Johnson, J. concurred. “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, slip op. at 8-9, 13-14, 37-38. I would decide that Moore procedurally defaulted both of these claims by not asserting them until the middle of trial.”

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