*1 TransAmerican, legitimate purpose.” case, prong In this
S.W.2d at 917. neither parte Carl Thomas PRESTON. two-part test was met. No. 300-91. Furthermore, preclude sanctions which presentation of the of the case merits Texas, of Criminal Court party’s should be assessed not “absent En Banc. flagrant faith or callous dis- bad counsel’s responsibilities regard discovery April 1992. under the rules.” Id. Nation- See Rehearing Denial of June On Hockey al Hockey League Metropolitan Club, Inc., 642-43, 427 U.S. S.Ct.
2778, 2780-81,
(1976) (per
tions. fact, contrary. there is evidence to the Lerner,
Koepp’s attorney of Karen September took a leave of absence.1 On returned to practice. Lerner her 5, 1990, following day, September Ler- legal Bishop, ner’s assistant called Utica’s counsel, to ask for an of time. extension Bishop to take or refused return her calls request
or respond to the for an extension Instead, file the he time to answers. September waited until which was day the deadline set the trial order, courthouse, court’s went take-nothing had trial court render judgment Koepp. Thus, against these cir- neither faith nor
cumstances amount to bad extreme warrant such sanctions.2 Accordingly, pursuant Tex.R.App.P. hearing argument, oral a ma- without jority grants Koepp’s applica- court of this error, judg-
tion for writ reverses appeals, ment court of and remands of the the trial for further cause to court opinion. proceedings consistent with this discovery request may present evidence that dispute not as to the reason 1. There is some contained, good response absence. She maintains unless Lerner’s leave of should have extended her to take an her ordered doctor Farah is shown. Alvarado v. cause Manufactur- practice seri- recover from Inc, from her Co., (Tex.1992). absence ous acci- injuries she sustained an automobile warranted, penalty sanction to For death however, Bishop dent. contends On the hand. discovery party must obstruct merely on vacation. she was refusing produce material process evi- germane to the resolution issue readily which should have been furnished dence case. TransAmerican, discovery. during See S.W.2d at 918. 215(5) of Civil of the Texas Rules Rule Under Procedure, respond to a party who fails *2 McLean, Romo, Houston, Roy
Ken J. G. appellant. Holmes, Jr., Atty., John B. Dist. Taft, Pendleton, Timothy Kelley G. Dave Houston, Siegler, Attys., Asst. Dist. Robert Huttash, Austin, Atty., for the State.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW BAIRD, Judge. charged in
Appellant originally single ag three counts of indictment with gravated robbery. After im proceeded paneled and appellant the second count alleged A was convicted of that offense. appellant for the of grand jury re-indicted alleged in the first and third counts fenses Appellant filed indictment. pretrial application for writ of habeas corpus contending subsequent prosecu guarantee his constitutional tion violated against jeopardy. The trial court double Appeals af denied relief and the Court of Preston, 801 firmed. Ex Parte 1990). (Tex.App. We [1st Dist.] — Houston judgment of the Court of will reverse Appeals.
I. dispute. previ- As
The facts are not noted, proceeded to trial ously McElwee allegations. litigating those solely on the second count of the indictment. there is no evidence 589 S.W.2d and Black v. 1979); in the record that the State took af- 143 Tex.Crim. dismiss, (1942). firmative action to waive or aban- permission don or State obtained *3 dismiss, or
from the trial
waive
III.
abandon the first and third counts in that
contends the instant case
The
Therefore,
is wheth-
indictment.1
the issue
State,
v.
Patterson
by
581
is controlled
jeopardy
al-
er
attached to the offenses
In Patter
(Tex.Cr.App.1979).
696
S.W.2d
leged in
the first and third counts
son defendant
barring
instant
indictment,
charged,
in a two-count
prosecution.
possession
of
of mari-
with the offenses
a firearm
a
possession
huana and
of
II.
felon,
omitted].
[footnote
Before
jeopardy is
The doctrine of double
impaneled and
jury was
from the Fifth Amendment
to the
derived
on the count for
proceed
State elected to
is
of the United States and
Constitution
marihuana;
possession of
[defen-
applied
through
to the states
the Four
The
was convicted of that offense.
dant]
Bretz,
v.
Crist
teenth Amendment.2
437
reindicted for the of-
[defendant]
2156,
(1978);
28, 98
IV. I. *4 original began by On submission we Accordingly, hold that order we stating, dispute facts are not ... “[t]he portion preserve charging to a instru of a no record there is evidence in the that the subsequent ment for a any action to State took affirmative dis (i.e., must, prior attaches miss, or that the waive abandon or State jury impaneled to the sworn and or judge permission the trial obtained trials, for bench when sides have an both dismiss, waive or the first abandon and ready pled nounced the defendant has Maj. op. third counts that indictment.” charging parte to the instrument. The pg. 517. State contends we mischarac- Torres, 418, 421), take some the facts. “submits terized The State that action, dis affirmative on the present the record in the case demonstrates miss, portion waive or abandon that of the present in the guessing that there no charging instrument and the State must Defense the trial case! counsel and court permission the trial obtain from obviously on The State’s were notice!” ar dismiss, portion of waive abandon that supported by gument simply not the charging Because the instrument. this record. done, jeopardy not attached to the reveals Our review of the record alleged in offenses the first and third moved for an appellant’s trial counsel ac- when counts indictment the counts at the quittal on the first and third impaneled appel jury was and sworn Specifically, ap- the close of State’s case.1 short, lant’s trial. we hold that the following pellant’s trial made the counsel guarantee against Constitutional Double motion: not Jeopardy permit does a constructive moves for ac- The defendant further portion of a the abandonment of counts of the quittal on the other two Accordingly, judgment the instrument. been severed have never the Court is reversed this has never and there been from remanded trial court with cause is sever, has there never any motion prosecution. orders to dismiss the to sever them. granted been motion put has not on evidence at The State [appellant] moves for verdict all and WHITE, J., result. concurs the cases, on both of acquittal both of those McCORMICK, counts, P.J., and Count 3.2 dissents. Count 15, 1989, February has Motion Rehear- reflects on 1. The State filed "State's 5. The record examination, of Entire Record Considered Court jury the voir dire submission, recog- Appeals.” On day. for the and sworn and released upon Appeals relied nized that Court only read count of the The State then the second appellant’s we obtаined from trial and record appellant guilty. pled indictment and not fully argu- in order to consider the record following morning, February on Accordingly, parties. the State’s ments of the again only read returned and State is dismissed as moot. motion appellant count of the indictment and second guilty. again pled not indicated, emphasis all here- Unless otherwise supplied. in is motion, the A. He did. hearing appellant’s At the did refer to or otherwise mention State However, appellant’s trial counsel testified: agreement appellant’s with trial counsel this, tri- Q. you [appellant’s Let me ask Ap- regarding the first and third counts. you or do al Do remember counsel]. by the trial pellant’s motion was overruled independent recollectiоn you have an appellant’s judge. The motion made went of whether one or more counts counsel, by implication, at least shows jury? agreement first and try there was no my that all the counts A. It’s contention third counts a later date. jury. went to directs us to a Q. way. you Do Let me ask it another hearing appellant’s application for writ Preston was remember whether Mr. corpus prosecutor tes- present- of habeas where arraigned and evidence was agreement given tified to an “off-the-record” ed and a instruction only? defense counsel to on the one count reveals second count. the record A. That’s correct. agree- dispute as to the existence of an Q. right. All And do remember proseсutor ment. The testified: [prosecu- having a conversation with re- Q. selection, before trial the record During was there tor] off *5 1 garding disposition of Counts process ever voir dire as to and 3? Three? Count One Count IA. do. A. No. Not at all. Q. right. All What was the substance
Q. Why was that? that conversation? prior A. Because there was a trial trying A. we were all It’s that myself, [ap- discussion had between cases at once. pellant’s] lawyer, [appellant’s trial Q. time she didn’t counsel], [appellant’s you and I Did know at the told time, here or some wit- at the that would have have witnesses counsel] on Monday morning, nesses were unavailable Counts been because we afternoon, picked jury Monday and 3? get
that I could not the witnesses No, they A. had witnesses here. for either Count One and Count Q. you agree with her to Okay. Did Three, proceed- and that I would be two cases at a later date? try those Two, ing only on Count and that’s all Absolutely A. not.4 during we ever talked about voir in record for the support We find no dire.3 that we mischaracterized State’s contention Q. talking Did at the time—and we are “Asser- original submission. the facts on trial, prior to and that would be off unsup- appellate brief that are tions in an right? Is that the record. accepted as by the record will not be ported A. That’s correct. State, 629 S.W.2d fact.” Vanderbilt Q. [appellant’s object Did trial counsel] To the con- (Tex.Cr.App.1981). way? in any to that nothing reveals on trary, our research He did not. A. No. to indicate the appellant’s trial record at regarding the Q. you only pro- intention agree Did he first Stated in the indictment. Two? third counts ceed on Count this pause that the State contends pause to note to note that voir dire did not take We 3. We hearing appellant’s application place Monday. case The record reflects the on Monday, February corpus properly called for trial on was not habeas for writ of ready. The case the State announced 1989 and Appeals review. How before the Court ever, IS, February Wednesday, was continued until expressly rejected the Court of place voir dire took and the when argument. Preston State’s 604, impaneled and sworn. See n. 1990). (Tex.App. Dist.] [1st - Houston submission, supra. way, anоther marijuana State failed to take session of in quantity a usable action, record, pre- affirmative on the of more you than ounces. And are seeking serve employ previous the first and third counts. convic- purpose
tions for the
enhancing pun-
in
guilty
ishment
case he’s found
on this
II.
count.
Regarding
application
our
of the relevant
The Defendant: Yes.
authority,
decisional
the State next con
The State: And
we are
tends we
holding
misconstrued our
Pat
going to sever count 1
count 2.
(Tex.Cr.
terson v.
from
going
We’re not
to dismiss count 1.
App.1979). In
jeop
Patterson we held that
ardy
right.
did
Court: All
subsequent prosecution
being
not bar a
Count
is
being
severed
because “the
but
dismissed.
proceed only
State elected to
on the count
Yes,
Pattеrson’s first
[utilized
State:
Sir.
prior
to the time that the
trial]
Now,
right.
The Court: All
I
want
Patterson,
sworn.”
indictment. quantity of more than 4 Do ounces.... problem.
Defense counsel: There is one understand that? Could we have stated the record which Yes, The Defendant: Sir. they count this two count indictment light, holding When viewed our going they on and what count are Patterson does not conflict with our hold- *6 abandoning? Moreover, ing original submission. the Honor, going The State: Your we’re distinguishable instant case is the because abandoning any- count two. We’re preserve prosecu- State failed to for future thing. tion, record, the third on the first and Now, The Let me the file. Court: have Additionally, counts the indictment. Ias understand it the count on which the record, nothing there is in the in- on the defendant is to tried is count which stant to indicate the trial con- presents: preservation sented to the of the first and [Whereupon count 2 of the indictment subsequent prosecution.5 third counts for a charging pos- Patterson with unlawful jeopar The State next contends marijuana session of read the was dy the counts should not attach to which Court] part dire were nоt a State’s voir Now, The Court: is the count on jeopardy did not at examination and that being which the defendant is tried. alleged tach to the offenses the first and Honor, proceed The Your State: we will appellant entered his third counts since paragraphs. on the enhancement plea only to the second count. The State going The Court: You are on count No. 2 provide any authority support fails to paragraph? and the enhancement which, as position, its other than Patterson Yes, The State: Sir. above, contrary discussed is to State’s independent re position. Do understand that? In Nor has our Court: words, being any support for the State’s he’s tried on the search found contrary, our research charges pos- position. To the count which the unlawful jeopardizing right its marihuana case without 5. The State’s reliance on Patterson is further support proceed pistol flawed when we consider the State’s brief in its on the case." To later brief, argued: In upon ”[b]e- Patterson. specifically position relied fore the was the record. election made on it clear that it would on the State made
521 three trial at a argument reveals that the State’s is with- serve counts one and following out merit for the reasons. later date. First, argument a similar was raised and III. v. Guzman
rejected in
(Tex.App. Corpus
683
Christi
no
holding
original
re-
Our
submission
—
held:
pet.), where
Court
quired the
to take some affirmative
State
action,
at-
jeopardy
on the
appel-
If it is the State’s contention that
tached,
charg-
preserve
portion
placed
jeopardy
on all the
lant was not
subsequent
trial. We
instrument for
counts
not all counts were read
because
necessary
held
action was
because
such
jury,
wrong.
Al-
to the
State
guarantee against
“the Constitutional
Dou-
though this
the rule in Texas before
permit
Jeopardy
ble
does not
a constructive
Bretz, it is not the rule now.
Crist v.
portion
of a
of a
abandonment
State, McElwee v.
at 455.
S.W.2d
pg.
Slip op.
instrument.”
v.
Guzman
683 at
n.
S.W.2d
holding as es-
The State characterizes our
tablishing
at-
a doctrine
“constructive
Guzman Court’s
reasoning
is well-
jeopardy.” Contrary
tachment of
adopt
reasoning
founded and
to-
assertions,
holding
our
did not an-
McElwee,
dаy.
State dismissed
jeopardy
nounce a new doctrine of when
impan-
after the
indictment
had been
attaches.
That
issue has been settled.
grand jury
eled and sworn. The
reindicted
Bretz,
Crist
437 U.S.
98 S.Ct.
the defendant for the same offense and the
Torres,
parte
(1978),
and 57 L.Ed.2d
sought
try
the defendant on the
(Tex.Cr.App.1991).
Court,
subsequent
rely-
indictment. This
prohibition against
The Constitutional
Bretz,
ing on Crist v.
437 U.S.
98 S.Ct.
designed
protect
double
(1978),
jeopar-
for without written IV. McCORMICK,P.J., dissents. Finally, the State contends the first and WHITE, Although present, I choose J.: third counts of the indictment were never participate in not to this matter. rehearing, abandoned. In its motion for argues: “it is State clear from OVERSTREET, Although present, I J.: record of this case that the State was participatе choose not to in this matter. abandoning, constructively either or actual- CLINTON, concurring. Judge, ly, the other two counts.” State’s argument is without merit. Procedure is in- Code Criminal tended, inter alia: preserved If the counts were not for applicable “to embrace rules to the ... prosecution, prior future to the time the prosecution of offenses and to make ... appellant respect procedure the rules of to ... necessarily placed jeopardy for the punishment intelligible of offenses alleged in first third offenses them, who are to act under the officers subsequently prose may counts and not be rights persons and to all whose are to be cuted for those offenses. Ex Parte by them.” Scelles, 511 S.W.2d affected 1974). 1.03, Article V.A.C.C.P.1 I right by the One such vouchsafed Consti reasons, foregoing deny For the right is the to know “the tution of Texas rehearing motion for and reaffirm against the accusation nature and cause of holding In or- our submission. him, copy Article and to have a thereof.” charging preserve portion der to of a I, 10; right That is effec Article 1.05. § prosecution, instrument future prosecu criminal tively implemented must, attaches, take through primary pleading “the tion some affirmative action on the State,” i.e., “the indictment or part of the charging in- preserve 27.01; see, e.g., information.” Article Gar con- strument and the State must obtain 145 Tex.Cr. ber v. preserve that sent from the trial (1942); Zweig 74 Tex. at 742 portion of the instrument. (1913, 1914) 747, at 753 171 S.W. Cr. words, jeopardy to the of- attaсhes (Motion Rehearing). The constitutional *8 in indict- alleged fenses in each count charging instru face of a intent is that the ment called for trial unless the count with sufficient provide ment an accused prosecution by the preserved for future know that him to information enable State, judge, of the trial with the consent pre charged in order to he is with which jeopardy attaches. defense; required to look his he is pare elsewhere, enough say he knows nor is it rehearing is de-
The State’s motion for charged. Arti- which he is the offense with nied.8 141, (Tex.Cr. State, Young 149 may 826 S.W.2d by take v. The affirmative action 1, 384-90, 1992) (Opin April App. example, No. delivered "dismis- several different forms. For Rehearing). Denying for State’s Motion pursuant art. ion to Tex.Code Crim.Proc.Ann. sal” 32.02, Patterson, supra, in etc. "severence” as throughout opinion emphasis here and 1. All 335, State, (Tex. All statu- indicated. is mine unless otherwise tory S.W.2d 337 8. See Heath v. 817 the code of criminal cited are to Cr.App.1991) (Opinion Pros articles on State’s and State procedure indicated. rehearing) unless otherwise ecuting Attorney’s and motion for
523
21.10,
may
e.g.,
judge the
dismiss a criminal
cle
V.A.C.C.P. and
Benoit v.
State
State,
810,
(Tex.Cr.App.
filing
561 S.W.2d
at 813
part upon
or in
a
action whole
333,
1977);
Moore v.
setting
for
written statement
out reasons
(Tex.Cr.App.1976);
Wilson
32.02.
such dismissal. Article
377,
(Tex.Cr.App.1975).
may
joined
Two or more offenses
be
in a
II
indictment,
single
separate
each stated in a
count, where the offenses arise out of the
A
episode
meaning
same criminal
within the
20,
Apрlicant was arrested on October
Chapter
Penal Code. Article
1987,
complaint
on a
and held without bail
custody
21.24.2 An accused in
must be
aggravated robbery
charging an offense of
copy
served with a certified
of the indict-
1987,
Rose,
16,
on
of Gerri
and
October
ment,
25.01,
Article
and an accused shall be
indicating
charge
aggravated
another
thereon,
26.01,
arraigned
Article
but not
robbery.
appeared
He first
with counsel
days
expired,
until
unless he
two
have
13, 1987,
on
and the matter was
November
thereto,
rights
Article 26.03. A
waive his
grand
pending
jury.
reset
action
plea
guilty
of not
constitutes a denial of
primary
The indictment in the
cause was
every
allegation
material
in the indictment.
1988;
8,
January
it contains
returned
Article 27.16.
counts,
alleging
three numbеred
each
An
days
accused is entitled to ten
from
16,
aggravated robbery: on October
plead-
service of indictment to file written
28,
Rose;
1987,
August
of Gerri
ings. Articles 27.11 and 27.12. The trial
Williams;
24,
September
Kay
Debra
may
pretrial hearing,
court
set a case for
1987,
January
From
of Deborah D. Yates.
including rulings
and the record thus made
through July
the case was
by the
part
court shall become a
routinely
purposes
such
reset
various
28.01,
record of the case. Article
1 and
§§
“motions”,
and, again, “mo-
“non issue”
upon timely
3. Then or thereafter
notice
$100,000,
tions;”
fixed at
but the
bail was
may
State
amend the
instru-
applicant
not show that
record does
commences,
ment before the date the trial
“non
released on bond. Other than one
may
or the State
amend after trial com-
setting,
remaining settings
issue”
object
mences if accused does not
ei-—in
“trial;”
parties
both
thereafter were for
ther instance with leave of court and under
5,
(b),
“ready for trial” December
28.10(a)
its
announced
direction. Articles
and
Similarly,
“carried” for two
28.11.
with consent of the trial
and the case was
exists,
Chapter
it must be founded
before amended
Acts
none. Thus if one
Leg.
September
law. Article 1.27. The
§
70th
Ch.
effective
the rules of common
one,
merely
provided
episode’
but has not identified
3.01
that '“criminal
assumes
§
repeated
rule for us.
means the
commission of
one of
such
(Offenses
of this code
fense defined
Title 7
it,
26.01,
Article
the statute mandates
Because
Against Property).” Without
notice an
further
applicant
appellate presumption that
there is an
may
prosecuted
single
accused
"in a
criminal
indictment, Tex.R.App.
arraigned on the
arising
all offenses
out of the same
action for
Indeed,
80(d).
judgment recites
3.02(b),
Pro.
the instant
3.02(a);
episode,"
cf.
§
§
criminal
"duly arraigned
applicant
[before]
had been
for which he has been
which event sentences
ready
3.03;
parties
for trial
both
announced
guilty
concurrently,”
run
§
found
however,
“shall
selected,
duly
impan-
thereupon
...
right
should he exercise his
to a man
offenses,
Tr. 70.
sworn[.]"
eled and
datory
severance of
Overton
1977);
Waythe v.
B
Preston,
parte
at
S.W.2d
impressed
appeals
The court of
1990).6
(Tex.App.
[1st]
preliminary
that
in his
address to
— Houston
facts
prеmise,
on that
the ultimate ratio
Based
judge of the trial court “read
the venire the
appli
appeals
is
nale of the court of
that
indictment;”4
II
that
only count
“did not choose jury in
cant
the first
jury
and sworn
regarding counts I
to hear evidence
presence
“present-
and outside its
III;
only
and
was voir dired
as to
II
which
only
ed
count
of the indictment
Id.,
Therefore,
II.”
at 607.7
count
appellant pled
guilty;”
not
the court
attach to
charged
“jeopardy
II
court held that
did not
only
“on
count
6. Of course if
5. As an
below
were neither
Appellate
between
by the State.
prescribed
sel to the
of note is that the court of
were not
the State’s
tence,
counts I and
by the foreman of the
Id.,
do,
continues
App. Corpus
observed,
Nonetheless,
In
Thomas
the State is
was not
S.Ct.
455.”
now. McElwee v.
because not all counts were read to the
in Texas before Crist v.
"We,
“If it is the State’s
—
it could have "abandoned
charged
the
on count
Guzman
is not bottomed on the
therefore,
aside,
the trial
prosecutor's
Brief,
dismissed,
to hold here: "Counts
Preston,
correctly
effect that she would be
placed
account of a
n. 1.
abandoned[.]”
severed nor wrong. Although
in the indictment.”
57 L.Ed.2d
one
III” on the record in a manner
law.
Christi
that is what the State desired
jury,
II,
at 2-3.
that "Counts
prosecutor
gain
notices that the verdict
guilty
as well as the State’s
In this
find the
severed
1987)
contention that
understanding
my
24], it is not the rule
Bretz
pretrial “discussion”
affirmance the State
appeals pretermitted
view,
aggravated robbеry,
connection, worthy
short,
no
reads:
on all the counts
theory advanced
defendant,
this was the
One and Three
[437
PDR,
One and Three
abandoned;
viz:
defense coun-
or dismissed
the decision
proceeding
U.S.
the court
appellant
[455]
signed
insis-
(Tex.
jury,
Carl
rule
she
it
7.Actually
juror
we are
tions,”
venireperson
out
questions; he remarked
them]
one of us
side
prosecutor
penitentiary.”
reprised two
comments
II S.F. 69-71.
cant addressed the
sure
ture failed to define
State;
“doubt based on
all criminal cases
writing
See
only
the future whenever
517-518.
tionary
onstrates,
would
able.” State’s
His
jury,”
He noticed
Without
counsel for
why you
Tex.R.App.Pro.
has ten strikes
impartial
that is reasonable
in this case?”
only question:
probably in the
that his definition of
so he was not
simply try
doing
аnd file it for inclusion
Review,
but those
memorialize their
failed to mention
Had it been
her
in his "voir dire”
alluding
have asked
general propositions,
now
Reply
"would
couldn’t
jury.”
reported
"understanding”
Id.,
applicant.
at 1.
reason,”
the burden of
and "we decided
“together
"we don’t
at all to
Rule 8.
Brief on
going
venire so
"[I]s
making
*10
[pause] "Since there
the witnesses were avail-
Id.,
first ten minutes
But,
guess
remaining two counts in
doubt,”
be a
mutual,
that "we are
several
term,
and
there
70-71.
just thirty-four
to ask
as the
Majority opinion,
reasonable
or we have
"understanding”
fair and
someone
the court
Petition for Discre-
counsel for
sure
want;” that each
while the
and
briefly that his
any reason that
was not
"if
proof is on the
hundred
indictment,
majority
getwe
he
[how
i.e.,
parties
individual
transcript.
hoped
impartial
into the
doubt is
so what
and the
just left
are not
picking
that in
legisla-
shared
to use
a fair
appli-
lines.
ques-
dem-
had
no
he
at
1988,
8,
January
upon
presented
I
III of
indictment
the ment
counts
and
the
arraigned,
prepare
prosecution.”
he had
to
first
Ibid.
which
been
aggra-
against three counts of
his defense
beyond
if”
the
But an “as
scenario is
therein,
ex-
robbery alleged
and to
vated
intent, purpose
objective
and
of our rules
proceed according to the
pect
to
ante,
procedure. See
at 516—
of criminal
grand jury.8
the
presented
indictment
contain
517. Once a
instrument
presented
more than one count is
primary
Nothing in the record
court,
the record shows that ac
and
remotely suggests that
cause
(by
had notice of it
service or other
cused
its announcement of
to withdraw
asked
manner),
functionally equivalent
was ar
continuance;
requested a
elected
ready or
ready
raigned, announced
for trial with
count;
appli-
any
gave
to sever or dismiss
proceeded
jury,
select a
prosecution and
to
to
sought leave of court
cant notice and
original jeopardy attaches to the
indictment; proposed to amend
amend the
jury
empaneled
and
when the
affording applicant
oppor-
an
in a manner
28,
38,
Bretz, 437
at
98 S.Ct.
Crist v.
U.S.
any
tunity
object;
to
or made
amendment
(1978);
2162, 57 L.Ed.2d
at 33
at
under its direction.
with leave of court or
(Tex.Cr.
McElwee v.
Crist McElwee, supra, rule. at 458-459. reasons, disposition For those of this correct, cause submission is is the determination now that thе State’s Rehearing
Motion for is without merit. CHRISTOPHER, Gregory Appellant, Texas, Appellee. The STATE of No. 1307-89. Texas, Appeals Court of Criminal En Banc. June Dallas, Rucker, appellant.
R.D. Vance, A. Atty., Dist. and Kathleen John Walsh, Breading Ann and Colleen Doo- Lee Dallas, lin, Hut- Attys., Asst. Dist. Robert Austin, tash, for the State. Atty., PETITION APPELLANT’S OPINION ON REVIEW FOR DISCRETIONARY BENAVIDES, Judge. sepa appellant of three
juryA convicted of a burglary habitation rate offenses of years im at 50 punishment and assessed The Court prisonment each. convictions, re affirmed one re acquittals in the ordered versed and Christopher maining two convictions. (Tex.App. — Dallas petition for 1989).1 granted appellant’s We to show evidence Whittington there was insufficient delivered the 1. Justice possession appellant’s property May found in opinion and reversed and burglaries. three property taken acquittals three cases because identical ordered in all