Werner, Dieter Heinz, 412 S.W.3d 542

Background

Appellant (Werner) faced two separate stalking indictments involving his ex-girlfriend: one in March–April 2010 and another in July 2010; the State moved to consolidate and the trial court denied Werner’s motion to sever.
Evidence at trial showed repeated GPS tracking device purchases, two tracking devices found under the complainant’s car, harassing and location-specific text messages, a tire‑slashing incident, and a protective order issued after the April incidents.
Jury convicted Werner on both indictments; the trial court assessed concurrent ten‑year sentences for each.
The court of appeals reversed, holding the denial of severance was harmful because the evidence for the two offenses was treated as separate and unrelated and consolidation risked improper inference from prior bad acts.
The State Prosecuting Attorney sought review asking whether failure to sever is harmful when (a) evidence of one offense would be admissible in a separate trial of the other, and (b) evidence of guilt for one offense is overwhelming.
The Court of Criminal Appeals held the severance error was harmless under Tex. R. App. P. 44.2(b) because evidence of the April conduct would have been admissible to prove elements of the July stalking charge and the April evidence was overwhelming.

Issues

Issue	State's Argument	Werner's Argument	Held
Whether denial of severance is harmful when evidence of one charged offense would be admissible in a separate trial of the other	Consolidation harmless if substantial evidentiary overlap exists because the prior acts would be admissible under Tex. R. Evid. 404(b) to prove elements of the other offense	Denial prejudiced Werner by allowing the jury to infer guilt for one offense from conduct in the other and by commingling distinct incidents	Harmless: May be harmless when extraneous‑offense evidence would be admissible to prove elemental facts of the joined charge
Whether overwhelming evidence of guilt for one charge cures severance error as to the other	Overwhelming proof of the April offense means any additional July evidence only marginally affected the jury; thus error did not affect substantial rights	Overwhelming evidence of one charge increases risk jurors convict on the other because defendant is a "bad man"	Harmless: Overwhelming evidence on the April count is a relevant factor supporting harmlessness
Proper standard for reviewing erroneous denial of statutory severance	Apply non‑constitutional harm analysis under Tex. R. App. P. 44.2(b); examine entire record, emphasizing evidentiary overlap	Error under mandatory severance statute requires reversal because consolidation risks unfair prejudice	Confirmed Rule 44.2(b) review; assess harm by reviewing whole record, with evidentiary overlap the central factor
Whether Llamas or Scott controls when joinder involves related misconduct	Scott: if evidence substantially overlaps or would be admissible in separate trials, joinder is likely harmless	Llamas: when evidence does not overlap, joinder is likely harmful	Scott controls here: the stalking offenses depended on a course of conduct, so substantial overlap made the error harmless

Key Cases Cited

Llamas v. State, 12 S.W.3d 469 (Tex. Crim. App. 2000) (wrongful joinder of unrelated offenses is likely harmful; voir dire showing juror bias crucial)
Scott v. State, 235 S.W.3d 255 (Tex. Crim. App. 2007) (failure to sever is harmless where evidence overlaps substantially and extraneous‑offense proof would be admissible on the other counts)
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (overwhelming evidence is a relevant consideration in harmless‑error analysis)