Tommy HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
No. 924-85.
Court of Criminal Appeals of Texas, En Banc.
Jan. 27, 1988.
745 S.W.2d 903
We hold that a workers’ compensation carrier may not recover prejudgment interest under
Accordingly, we reverse the court of appeals’ judgment and render judgment that Liberty Mutual is not entitled to prejudgment interest on the compensation benefits paid Jones and the medical expenses advanced on Jones’ behalf.
Jimmy James, Houston, for appellant.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
Appellant was charged in a single indictment with aggravated sexual assault and aggravated robbery with the same enhancement paragraph added to each count. Appellant waived his right to a jury trial and was found guilty by the trial court of both offenses. After pleаding true to the enhancement paragraphs, appellant was sentenced to thirty-five years for each of the offenses, the sentences to run concurrently.
The conviction was appealed to the First Court of Appeals on the grounds that the two offenses werе improperly joined in one indictment, that the part of the indictment
The testimony showed that appellant approached the victim as she was getting out of her car in the parking lot of her apartment complex, threatened her with a knife, and forced her into his truck. Appellant stopped at the end of the pаrking lot and made the victim give him her money and her billfold. Appellant then drove a few blocks, stopped the truck, and forced the victim to have sexual intercourse with him. Afterward, appellant drove to the end of the street and let the victim go.
We will address the joinder issue first. There are two basic rules that govern joinder of offenses in charging instruments: (1) the State may allege more than one offense in a single charging instrument if the offenses constitute the repeated commission of the same property offense under Title 7 of the Penal Code; and (2) the State may nоt allege more than one non-property offense in a single charging instrument regardless of the number of the transactions involved.
The first rule is stated in
Two or more offenses may be joined in a single indictment, information or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.
Criminal episode is defined in
The second rule comes from a narrow reading of
- allege more than one non-property offense;
- allege statutorily different property offenses, or;
- allege one property and one non-property offense.
Conversely, according to
In order to understand why different offenses may not be joined, it is necessary to trace the history of the joinder rules. Bеfore the principles of criminal procedure were codified, the common law mandated that only one conviction be obtained from one indictment. In 1879 Article 433 of the Code of Criminal Procedure allowed a charging instrument to contain multiple counts charging the same offense. Offense was determined to mean criminal transaction. Dill v. State, 35 Tex.Crim. 240, 33 S.W. 126 (1895).
In 1973, in response to Vannerson, supra,
“all conduct ... incident to the attempt or accomplishment of a single criminal objective, even though the harm is directed toward or inflicted upon more than one person.”
Drake, supra at 940. This rejected definition of criminal episode would have, upon adoption, codified the holding of Vannerson and Dill, supra, since this definition is de facto a definition of a “criminal transaction“. Instead, the legislature decided on the more narrow definition found in
In 1983 this Court handed down Meeks v. State, 653 S.W.2d 6 (Tex.Cr.App.1983). Meeks, supra, held that the 1974 revision of
When the statute says offense it doesn‘t mean criminal transaction, but rather it means one statutory offense as broken down by the Penal Code (i.e. assault, murder, abuse of office, etc.).
The Meeks opinion also ignores the legislature‘s refusal to define criminal episode broadly. By rejecting a definition that would have allowed joinder of offenses that resulted from conduct directed toward accomplishment of a single criminal objective, the legislature was rejecting the practice approved by Vannerson, supra, of charging a defendant with multiple offenses thаt arose from the same incident, act or transaction.
In 1985 a plurality of this Court joined in the opinion handed down in Drake, supra. We now hold that Drake, supra, was correct in its statement that
The State may, of course, charge multiple offenses arising from different transactions in separate indictments (one offense per indictment) and consolidate them in one trial if the defendant consents under
When the State violates the misjоinder rule by alleging different offenses in the same indictment, the defendant has three options. First, he may object to the charging instrument on the ground that the State has misjoined offenses. The trial court should then grant the motion to quash, or may, instead, force the State to elect the offensе upon which it will pro-
If the trial court allows all of the counts containing all of the different offenses to go tо the jury and the jury convicts, Drake, supra, states two rules:
- when more than one offense arising from the same transaction is contained in one indictment there is fundamental error. Even if the defendant does not object to the joinder the appellate court can uphold only one conviction;
- when offenses arising from different transactions are joined in one indictment, failure of the defendant to object waives the error and all the convictions can be upheld.
This latter rule from the Drake case violates the old common law doctrine of one conviction per indictment. It also emasculаtes the long-standing rule in this State that offenses arising from different transactions may not be joined in one charging instrument. Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125 (1956); Smith v. State, 101 Tex.Cr.R. 615, 276 S.W. 924 (1925). There is no indication that
The rationale offered in Drake, supra, for the different treatment is given cursorily in one paragraph (686 S.W.2d at 944-945). The opinion first characterizеs the clear prohibition against multiple offenses in one indictment as a “right” that can be waived just as most rights can be under
Where the appellant makes no protest at being convicted for more than one felony under the same indictment [citation omitted] this court would not feel callеd upon to raise the question on its own motion. But such procedure is so fundamentally erroneous that it calls for review when raised at almost any time. After verdict the court‘s attention was called to the matter by motion denominated one in arrest of judgment.... Upon the motion being overruled the complaint was again presented in the motion for new trial. That error has been committed which demands reversal there can be no doubt. Wimberley v. State, 249 S.W. at 497.
The quote from Monroe, supra, similarly notes that if the appellant had complained on appeal of two convictions from one indictment he would hаve been heard. Since the appellant did not raise the complaint on appeal, the court reversed on other grounds but noted this error “[i]n view of another trial“.
From this point, Drake, supra, assumes as established the notion that “some character of objection in the trial court [is required]“. The caselaw patently indicates that the error will be reviewed as long as on appeal some character of complaint is
For the reasons stated, misjoinder errors should be treated the same, and the concept of “different or same transaction” should be removed from the analysis of these issues.
In the instant case appellant was indicted for аnd convicted of aggravated sexual assault and aggravated robbery. These offenses do not constitute the repeated commission of the same property offense, and, therefore, they may not be alleged in the same indictment.
The court of appeals rejected appellant‘s contention that these two offenses arose from the same transaction, and for this reason held that appellant had “waived” any objections to the misjoinder of offenses. In Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988), we overruled that portion of the Drake opinion which held that when the State joins two or more offenses arising out of different transactions, such error must be objected to at trial or waived on appeal. Thus, it makes no difference whether these offenses arose from the same or different transactions. Either way there is no requirement of an objection at trial to preserve the error for appeal.
In the instant case, appellant did not object to the State including two offenses in one indictment. When the trial court erroneously permits the State to convict the defendant of more than one offense and there was no objection at trial, the appellate court can cure this error by choosing one of the convictions to affirm and dismissing the remainder. In the majority of cases this Court has chosen the offense that the defendant was convicted of first. Ex parte Ellison, 699 S.W.2d 218 (Tex.Cr.App.1985); Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985); Ex parte Prince, 549 S.W.2d 753 (Tex.Cr.App.1977); Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972). In Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975), cert. den., 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975), the offense that was alleged first in the indictment was affirmed and the rest reversed.
The judgment in the instant case lists the conviction for aggravated sexual assault first and aggravated robbery second. Aggravated sexual assault was also alleged first in the indictment. The aggravated sexual assault conviction will be upheld and the aggravated robbery сonviction dismissed.
We will reverse the judgment of the Court of Appeals and reform the judgments of the Court of Appeals and the trial court to show a conviction and sentence for aggravated sexual assault only. The conviction and sentence for aggravated robbery will be deleted from the judgment.
The judgment and sentence as reformed are affirmed.
CAMPBELL and McCORMICK, JJ., dissent for the reasons expressed in Judge CAMPBELL‘s dissent in Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988).
Notwithstanding the fact that missing from the majority opinion is the following statement: ”Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985) is expressly overruled“, TEAGUE, J., joins the opinion of the Court. Also see the concurring opinion that he filed in Ex parte Siller, 686 S.W.2d 617, 620 (Tex.Cr.App.1985).
CLINTON, J., dissents to this opinion.