Callins v. State
726 S.W.2d 555
Tex. Crim. App.
1986
Check Treatment

*1 everything majori- else that is stated

ty opinion I don’t. —because CALLINS, Appellant,

Bruce Edwin

Nos. 0707-85. Texas,

En Banc Burns, Dauphinot, Danny Ann D.

Lee Worth, appellant. Fort Curry, Atty., Tim Dist. C. Marshall Chris Montague, Attys., Dist. and David H. Asst. Huttash, Worth, Atty., State’s Fort Robert Austin, for the State. *2 capital conviction,

same as a trial murder all three single convictions constituted a case directly ap- must be OPINION ON APPELLANT’S PETITION pealed to this Court. Both FOR DISCRETIONARY REVIEW seem agree the State to with interpre- this 2, 4.04, supra. tation of We dis- § CAMPBELL, Judge. agree. Appellant jury, was convicted a trial, aggravated robberies. 4.04, 2, suрra, in conjunc § aggravated Punishment for each of the V, 5, supra, grants tion with Article this § imprison robberies was assessed at life appeal jurisdiction Court direct over “cases $10,000 ment and а fine. Second penalty which the death has been as Appeals appellant’s ap Court of dismissed 4.03, V.A.C.C.P., grants sessed.” Article peal, holding jurisdiction.1 that lacked Appeals of аppeal juris Courts direct State, (Tex.App. Callins 680 v. S.W.2d 680 diction “coextensive limits of their 1984). appel —Fort granted Worth We respective districts in criminal all cases ex petition discretionary lant’s cept penalty those which the death 4.04, 2, determine whether Article V.A.C. § Appeals been assessed.” As the Court of C.P.,2 prevents Court Appeals of from correctly noted, parameters of these reviewing depend upon limitations 302(c)(2). Tex.Cr.App. convictions. Rule meaning of a “case.” We will reverse and remand. Despite the fact our appeal direct In dismissing appeal of his jurisdiction depends upon meaning aggravated convictions, robbery the Court provid- no definition term of that is 2, 4.04, held that Article 2, § ed under either 4.03 or § appellate jurisdiction limits supra.3 common definition gravated robbery convictions to the Court provides help little because its indefinite Criminal The Court of However, meaning.4 our examinatiоn of that, reasoned since the rob- the term use bery in the been obtained Code of Criminal when com- Appellant likely was also convicted of mur- tion was to result from a trial. der capi- began day same trial. Punishment trial on instant as our Appellant doctrine, tal murder was assessed at carving death. abandonment thus lead appealed his ing attempt multiple the Stаte to obtain con to this Court. We reversed the in a victions trial. State, misjoinder. Callins v. No. 69,023 2, 1986). (Tex.Cr.App. is: 4.“Case" action, cause, general A term for an suit or 4.04, 2, supra, pertinent controvеrsy, equity; question at law or vides: “The of all cases in which the justice; aggre- before a contested court of death has been assessed shall be gate of facts which occаsion furnishes jurisdition justice. court of exercise V, 5, language mirrors the of Article judicial proceeding for the determination of a the Texas Cf. Article V.A.C. Constitution. controversy parties rights bеtween wherein ("The appellate C.P. Courts of protected, wrongs or or are enforced are with the of their coextensive limits redressed; any proceeding judicial ventеd respective except in all criminal districts cases nature.” in its been those in which the death as- 1979). (5th Dictionary Black's Law ed. Al sessed.”). though used in a civil at least one Texas (All suppliеd by emphasis the author City mean court has defined "case” to "cause.” indicated.) opinion unless otherwise Big Spring Garlington, v. 88 S.W.2d 1935) ("Case (Tex.Civ.App. 1096 — Eastland synonyms.”) Cf. Arts. 21.26 & carving doctrine 3. Prior to abаndonment of the (terms “cause” V.A.C.C.P. ‍​​‌‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌‌​‌‌‌‌‌​​‌​‌‌‍"case” and used inter McWilliams, (Tex.Cr. parte in Ex 634 S.W.2d 815 However, changeably). “cause" likewise left App.1982) Rehearing), (Opinion on was no undefined the Code of Criminаl Procedure. need convic to define a "case” because single sentence of meaning in a general of that murder and bined with term, requiring preferential under- specific tо a more death. then leads us standing of “case” as used of such a conviction treatment for review “cases,” 4.03 & See and distinguished from other 653, 656, n. cf. 706 S.W.2d Green a “case” to a Legislature impliedly limited (meaning “punish- (Tex.Cr.App.1985) Again, *3 of its use ment” derived from context therefore, equals conviction for a Procedure). Code then, Logically, single offense. offenses, separate even and sentences 42.08, V.A.C.C.P., example, in Article For judg- ‍​​‌‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌‌​‌‌‌‌‌​​‌​‌‌‍placed in same document of if the indicate a convic- the term “case” is used to ment, considered “cases.” 42.08(a), tion for a offense.5 begins by referring a defendant supra, Placing language of Articles 4.03 & In being in “two or more cases.” convicted 4.04, 2, supra, in the above 42.08(a), sentence, supra, nеxt provisions limitations of those to cumu- grants the trial court discretion “case,” appellate pur- clear. A become “in the second and subse- punishments late aggregate of facts that re- poses, is that language of the quent convictions.” The for a offense. sulted in a conviction requires understanding that a statute in the death which punishment conviction involves facts only refers to those been assessed re- only one offense. This in a convictionfor the offense that resulted im- placement of “conviction” for “case” and a sentence of death. plies “case” consists of a conviction that a 2, su- Consequently, under Article pra, only the direct pen- “in conviction which understanding This of a “case” is con- shall to the Court alty has been assessed sistent with Articles 4.03 & Any “convic- other especially conjunc- of Criminal when considered 37.071(h), might have been obtained language of Article tions” that tion with the 37.071(h), separate and distinct “cases” supra, be- trial are V.A.C.C.P.6 stating of con- the direct review gins by “judgment that the fall under and therefore subject appeals provid- jurisdiction viction and sentence death” of the courts by In automatic direct review Court. ed in Article sentence, 37.071(h), supra, the next appeal, appellant was In the instant priority states that review” “[s]uch aggravated robberies. convicted “all other cases.” refer- over that resulted aggregate of facts and ring “judgment to the of conviction aggravated robbery convictions death,” Legislature contem- sentence capital murder obviously not result in a did plated conviction review concurrently 42.08(a), punishment shall run supra, that the controls the trial 5. Article cases, per- case or and sentence punishment. with the other ability court’s to cumulate accordingly. execution shall provides: tinent convict- has been When the same dеfendant 37.071(h), provides: cases, punishment and the ed in two or more judgment of and sentence in an in each case is confinement assessed by subject to automatic review death shаll be Department operated by institution days Appeals within 60 Court of Criminal imprison- jail or the for a term Corrections sentencing by court certification after ment, judgment shall be and sentеnce time is extended entire record unless manner as each case in the same nounced in days by period not to exceed additional Except but one conviction. if there had been good Appeals for of Criminal article, (b) by provided of this Section Such review the shown. court, judgment the discretion of the priority over all other subsequent convictiоns the second and cases, heard in accordance and shall be begin punishment shall either be that promulgated the Court of Criminal rules judgment sentence in the when operate, сeding has ceased to conviction and sentence of death. While nation of the join I opinions.1 both offenses occurred close time and place to facts that did rеsult death,

murder conviction and sentence of robberies ‍​​‌‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌‌​‌‌‌‌‌​​‌​‌‌‍constituted cases from the As murder case.

such, neither case fits

within the death exception noted 2, supra. &4.03 There- fore, Art. 4.03 & Eugene BRIDGE, Appellant, Warren supra, we find of Appeals gravated robbery сonvictions.7

The judgment of the No. 69468. reversed. This cause is remanded to of Texas. for that court to consider appellant’s grounds of error. Oct. 1986.

ONION, P.J., participating. not

DAVIS, W.C., McCORMICK and

WHITE, JJ., concur.

CLINTON, Judge, concurring. distinctly posture

In the unusual

things causes, truly these ‍​​‌‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌‌​‌‌‌‌‌​​‌​‌‌‍no precedеnt directly point.

extant Essen-

tially, opinions engage analysis germane constitutional and

statutory provisions to conclude that there offense, misjoinder

has been a such that required

“the trial court was sustain election,” request

.appellant’s and that “ equals of- ‘case’

fense convictions and sentences [so that] offenses ‍​​‌‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌‌​‌‌‌‌‌​​‌​‌‌‍... are considered prescrib- ‘cases’ [for

ing jurisdiction appeal].” on direct While reservations,

harboring mainly some about along way

incidental observations made may complete what than be less exami- 69,023, example, argue Both and the State that allow- 1. Cause No. there are "ambiguities" prior applications ing capital allusions to murder conviction which results сoncept of “transactions." In Causes Nos. and other convictions ob- another, 0069-85 and the conclu- ap- tained the same trial have bifurcated supported by sion seems further the fact that peals delay and will cause result inefficient "criminal case” and "criminal action" are used judicial duplica- use of While some resources. interchangeably thrоughout the Code Crimi- required by splitting tion the record ordinarily nal the latter understood appeals, extremely its these rare, occurrence will prosecution" seeking to be a "сriminal deter- appeals witnessed absence guilt of one accused of a mine penal or innocence appeal. similar to the instant generally, Kemper See (1911). 63 Tex.Cr.R. 138 S.W. 1038-1039