Jordan v. State
552 S.W.2d 478
Tex. Crim. App.
1977
Check Treatment

*1 JORDAN, Appellant, Thomas Texas, Appellee.

No. Appeals of Texas.

Court of Criminal *2 Vollers, 3.02, Atty., Jim D. and David supra, 21.24, State’s and Article supra, sepa- McAngus, Atty., Austin, Asst. State’s for pronounced. S. rate sentences be V.T.C.A., Code, the State. 3.03, Penal Section provides: “When the accused is found guilty of one more than offense arising out of the OPINION episode criminal prosecuted same in a sin- DOUGLAS, Judge. action, criminal gle sentence for each of- Appellant was convicted in two counts in which he fense for has been guilty found burglary one indictment for the offenses of pronounced. shall be Such sentences building a with to commit theft intent concurrently.” run shall Trial was before the upon and theft. provision requires separate above plea guilty. Punishment was assessed joinder sentences cases. In White v. years at two on each count. State, 543 S.W.2d 130 (Tex.Cr.App.1976), the defendant had been convicted attempt prosecute This was an to of three aggravated counts of robbery, V.T.C.A., pursuant Code, the sen- Penal Sections single referred 3.02, tence 21.24, V.A.C.C.P., conviction 3.01 Article robbery occurring specific on a date. amended, single prosecution as wherein a mention was No made of the other two multiple arising allowed for offenses out of counts nor the dates on which the robberies same episode. the criminal epi “Criminal were committed. This Court affirmed as to V.T.C.A., Code, sode” is defined in Penal the conviction on the first count repeated as “the and dis- Section commissionof appeals the missed as to the any one second and offense defined in Title 7 of this doing, third counts. In so (Offenses Presiding Judge Against code Property).” Such Onion, speaking for the majority, precludes said: burglary definition and theft constituting from “offenses arising out of “If sentences were in pro- fact same episode.” the criminal nounced in the regarding the second counts, and third but there was a failure parallel A situation existed under the for- sentences, to enter such they may be en- penal mer code where two distinct felonies pro tered nunc tunc. Art. based on different transactions were al- If, hand, C.P. on the other sentences leged in the same indictment. properly pronounced, were never The theft count of the two-count pronounce now sentences and indictment fundamentally defective for appeal may be taken therefrom if allege failure to lack of effective consent of so appellant desires.” the owner. Reynolds In the instant case the sentence con S.W.2d 590 (Tex.Cr.App.1976). Hence, the convictions, recitations tains as to both bur only remaining valid count is that glary building and theft. The sentence of the building. This Court has should be corrected to read burglary of a to reform and correct judg building. The situation is analogous to that ment as the law and the nature of the case Shapley (Tex.Cr. S.W.2d 3 When, require. on appeal, this Court where the App.1968), indictment charged has the same information for the reforming offenses, embezzlement and theft. The correcting of the judgment or as the trial trial court submitted only the theft offense court would have were re jury, found the defendant appeal dismissed, versed or the judg charged, and the judgment and will be reformed and corrected on recited that sentence defendant had 44.24, V.A.C.C.P.; appeal. Article adjudged guilty of embezzlement of Ann.P.C.2d, 688, page Branch’s Section fifty dollars. We reformed judg and cases cited therein. ment and sentence on appeal to show that requirement Next is the in the defendant’s conviction was for felony joinder cases of under 3.01 and Sections theft. (Tex.Cr. 289 S.W.2d248 not meet all the elements of the statutory

App.1956), where the indictment included definition is no sentence at all. Casias v. forgery passing the offense of and of a State, Tex.Cr.App., 503 S.W.2d 262. The instrument, forged and the pled defective sentence constitutes a both, and was tional barrier preventing our consideration penitentiary a term of seven of the case on its merits. This barrier to *3 assessed, we judgment was reformed the appellate the exercise of our sentence to read that he and was appeal that this dictates be dismissed. The forgery and sentenced to a term of sought other defects to be “corrected” by not less than nor more than seven majority may be corrected by the trial Likewise, Cunningham State, in v. years. upon its resumption 906 (Tex.Cr.App.1972), 484 S.W.2d where following our dismissal. For had found the defendant this Court to merits, consider the when we offense of concealing stolen property have no so, to do is usurpation. judgment and but sentence recited that Anderson, v. Stuart 70 Tex. 8 S.W. 295 he had been convicted of receiving and (1888). concealing property, stolen we reformed the Because the sentence in the case at bar judgment and sentence to accord with the recites conviction for offenses, two distinct jury’s verdict. void it is on its face for uncertainty, and is State, Then in Franco v. 491 S.W.2d 876 therefore support jurisdic insufficient (Tex.Cr.App.1973), where the indictment in tion this Court. The majority cite four charged in two counts with un- authority cases as for reforming the sen pos- lawful sale of marihuana and unlawful tence instead of dismissing the appeal: of marihuana but the charge session court’s State, v. Tex.Cr.App., only sale, the issue submitted as to we State, Shapley v. Tex.Cr.App., 431 S.W.2d judgment reformed the finding the defend- 3; Cunningham State, v. of sale possession ant to guilty 906; and S.W.2d Franco v. Tex.Cr. of sale. also Article See V.A.C. App., 491 Franco is not in C.P., and the cases collated under notes point: opinion in Franco recites that 65, 70 and 74. reformed; judgment was no reforma No reversible error is shown. The judg- tion of the sentence was ordered. Art. 44.- sentence are reformed to reflect 24(b) authorizes judgment, reformation of a the conviction of a build- not of Shapiey a sentence. also is not ing with intent to commit theft. point: The sentence in Shapiey recited reformed, As embezzlement, the conviction is affirmed. conviction for and therefore was not void on its face for uncertainty, ODOM, Judge, dissenting. support and did the exercise of appellate jurisdiction. Only upon consideration of juris- I dissent to this Court’s exercise of the merits was it revealed that the judg appeal diction in this because in the absence ment and sentence erroneously recited em power sentence we are without Thus, bezzlement instead of theft. Shapiey to hear the case on its merits. support does not exercise of our appellate 44.24(b),V.A.C.C.P., Although Article jurisdiction in the instant case. thorizes Court to reform and correct Although Cunningham Clark, judgment, sentence and supra, appear to have thing, not the same but are distinct and on are decided sen- suffering a independent. Arts. 42.01 tences defect like the one before C.P.; now, Morgan Tex.Cr.App., v. us in neither case jurisdiction- 515 was the addressed, Scott al issue nor any was authority Pronouncement of sen- cited for the to reform a sentence. Thus, jurisdictional appeal tence is for an to this they authority are not on purported and a sentence which does tional jur- of this Court’s The exercise Just discretion.1

isdiction STOGSDILL, Appellant, Kenneth Dee appeal to hear an not decline we invoked, we properly when juris- appeal when Texas, not hear Appellee. likewise concurring opin- lacking. my diction No. 54781. State, Tex.Cr.App., Means ion (1977). Appeals of Criminal of Texas. majority today, as (1977) rehearing) refuse to address on (opinions fundamental *4 These matters

presented. The power. this Court’s limits of

define insignificant techni- limits of this

calities, practical but of the people of Texas and power. The

Court’s ruling are entitled bench and bar duty power. It is the limits of

on the arises, when the issue as in

of this before recently case and others instant this fundamental issue.

us,2to address this Court to account for

refusal repugnant to the of its

source government answera- principles

basic majority not people. to the

ble taking jurisdic- authority for to show

fail case, address but refuse to even

tion of

the issue.3 exercise of

I dissent However, majori- case. in view of the urge I will consider- position, longer no

ty’s by bound of the We are all

ation See, g., e. Childs v. Court.

decisions 613, 615,

State, Tex.Cr.App., 547 n.

2; Banks v.

940, 942, 1.n.

PHILLIPS, J., joins this dissent. today’s expansion discretionary 3. contrast our 1. Contrast matters, corpus original statutory as discussed in habeas in the face of no or con- Norvell, Tex.Cr.App., parte Guzman, authority, parte Ex see Ex stitutional (No. 1977), Tex.Cr.App., 551 S.W.2d 387 urged restriction of habeas the dissent in which See, Dickey, Tex.Cr.App., g., parte e. Ex statutory corpus in the face of Hurd v. protection thority constitutional supra; parte Means v. availability the writ. Guzman, supra; Ex 54253, 1977). (No.