Motion for Severance In Texas
Absent evidence of prejudice to one defendant in a joint trial, or evidence that one of the defendants has a prior admissible conviction, a motion for severance is left to the trial court's discretion. See Patterson v. State, 783 S.W.2d 268, 270 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd); see also Silva v. State, 933 S.W.2d 715, 718 (Tex. App.-San Antonio 1996, no pet.).
When an accused is not entitled to a severance as a matter of right, the denial of a severance motion by the trial court constitutes an abuse of discretion only when the movant satisfies the "heavy burden" of showing "clear prejudice." See id.
Moreover, the mere allegation that prejudice will result is not evidence of, or a sufficient showing of, prejudice under article 36.09, particularly when the severance is discretionary with the trial judge. See id.
If the motion to sever is not supported by evidence, its denial is not an abuse of discretion. See Silva, 933 S.W.2d at 718.