toward or inflicted upon more than one person, if the offenses were committed pursuant to the same transaction or pursuant to two or more transactions that are connected to or constitute a common scheme or plan, or if the offenses are the repeated commission of the same or similar offenses.  § 3.01 (Vernon 2003).

When two or more offenses have been joined for trial under section 3.02, the defendant has a right to severance of the offenses, except when the defendant is being prosecuted for an offense described by section 3.03(b), in which case, severance is permitted only when the trial court determines that the defendant or the State would be unfairly prejudiced by joinder of the offenses.  § 3.04(a), (c) (Vernon 2003).  The offenses described by section 3.03(b) include indecency with a child under the age of seventeen years.  § 3.03(b)(2)(A) (Vernon Supp. 2009); see § 21.11.  There is no presumption that the joinder of cases described by section 3.03(b) that were allegedly committed against different children is unfairly prejudicial.  See Salazar, 127 S.W.3d at 365 (citing Diaz v. State, 125 S.W.3d 739, 742-43 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd.)). The burden to show how he would be unfairly prejudiced by consolidation rests with the defendant.  See Lane v. State, 174 S.W.3d 376, 380 (Tex.App.--Houston [14th Dist.] 2005, pet. ref'd).

            Initially, appellant seems to contend that the facts and circumstances surrounding the allegations made in the present causes are so different that they do not constitute “the repeated commission of the same or similar offenses,” § 3.01, and, therefore, the trial court erred in denying appellant’s motion to sever.  Because appellant’s issue challenges the denial of the motion to sever, we must initially determine whether the trial court abused its discretion in denying the motion on the basis that the causes were not appropriate for consolidation.  Appellant attempts to distinguish adverse case law by highlighting the facts that these causes involved three separate victims that were not members of appellant’s family, and the offenses were singular occurrences rather than recurrent.  However, nothing in the case law cited by appellant establishes that any of these factors are required to establish that offenses are sufficiently similar to justify consolidation.  After reviewing the record, we conclude that these offenses were sufficiently similar to justify consolidation.  The similarities include: each of the three victims were in the same age range when assaulted by appellant, appellant met each of the three victims through his position of employment, and many of appellant’s statements and actions were consistent with each child.  As such, we cannot say that the trial court abused its discretion in denying appellant’s motion on the basis that the offenses were not sufficiently similar to justify joinder.  See §§ 3.01, 3.02(a).

However, even if causes under section 3.03(b) are properly joined, severance is appropriate if the defendant or State would be unfairly prejudiced by the joinder.  § 3.04(a), (c).  Appellant contends that the testimony of the victims, when taken separately, reveals flaws and inconsistencies that were masked by the consolidation of the cases.  Further, appellant contends that the admission of the testimony from each of the victims in the same proceeding impermissibly bolstered the testimony of each victim.

As previously stated, when the charged offenses are offenses described by section 3.03(b), there is no presumption that the joinder of cases allegedly committed against different children is unfairly prejudicial.  See Salazar, 127 S.W.3d at 365.  Additionally, it is well-established that evidence of other crimes may be admitted in a case if it rebuts a defensive theory.  See Moses v. State, 105 S.W3d 622, 627 (Tex.Crim.App. 2003).  Appellant’s defensive theories at trial primarily consisted of denying that he committed the offenses and claiming that the victims’ testimony was inconsistent or coached.  As such, even if the severance had been granted, it is likely that, in each case, the testimony of the other victims would have been admissible to refute the defensive theories that the victims’ testimony is unreliable or was the result of coaching.  See Salazar, 127 S.W.3d at 365.  Therefore, we conclude that the trial court could have reasonably found that the joinder of the cases was not unfairly prejudicial to appellant.  Id. at 365-66.  Consequently, the trial court did not abuse its discretion in denying appellant’s motion for severance.  We overrule appellant’s issue.

Conclusion

For the foregoing reasons, we overrule appellant’s sole appellate issue and affirm the judgment of the trial court.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

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