In two verdicts based on two indictments jointly tried, a jury found appellant guilty of two offenses: unauthorized use of a motor vehicle (cause no. 6700) and burglary of a habitation (cause no. 6701). Tex.Pen. Code Ann. §§ 30.02 and 31.07 (1974). Punishment, singly enhanced for both offenses, was assessed by the jury at imprisonment for 20 years and 50 years, respectively. Tex.Pen.Code Ann. § 12.42(a), (c) (1974 and Supp.1987). We will affirm the judgments of conviction.
*666 The State’s evidence shows that around 3:00 a.m., September 28, 1985, appellant, without permission, entered an Elgin residence via its kitchen window while the occupants were asleep. Appellant soon exited the residence through the front door, taking some car keys and other articles with him. Once outside, appellant, with the aid of the car keys, drove away in a car belonging to the occupants of the residence.
In three points of error, appellant contends the parole law/good conduct time instruction mandated by Tex.Code Cr.P. Ann. art. 37.07, § 4(b) and (c) (Supp.1987) and given by the trial court violate our state constitution’s due course of law and separation of powers provisions. See Tex. Const.Ann. art. I, § 19 and art. II, § 1 (1984).
The same arguments were made to and rejected by this Court, with respect to the art. 37.07, § 4(a) charge, in
Richardson v. State,
Even assuming
arguendo
that it was error to give the instructions, appellant did not object at trial and therefore must demonstrate that the error caused him actual egregious harm.
Almanza v. State,
In two additional points, appellant argues the trial court fundamentally erred in accepting two guilty verdicts based on two indictments for “offenses arising out of the same transaction.” The record reflects that appellant did not object, either before or during trial, to the consolidation of the two indictments.
The Legislature has provided for consolidation of charging instruments only for offenses arising out of the same “criminal episode,” i.e., the repeated commission of any
one
property offense defined in Title 7 of the Penal Code. Tex.Pen.Code Ann. §§ 3.01-3.04 (1974); Tex.Code Cr.P.Ann. art. 37.07, § 1(c) (1981);
Ex parte Siller,
Recent cases have cast doubt on this rule, however. In
Drake v. State,
In the still more recent case of Callins v. State, No. 69,023, Tex.Cr.App., July 2, 1986 (not yet reported), the Court of Criminal Appeals has given its strongest suggestion to date that multiple charging instruments alleging offenses not arising from the same “criminal episode” may not be lawfully consolidated for trial:
We do not decide whether the implicit pleading requirements of [Code Cr.P. art. 21.24] allow the State to join nonproperty offenses through separate indictments. However, even if the State could successfully join nonproperty offenses for a single trial through separate indictments, it would still face at least two remaining procedural hurdles that might prevent it from obtaining more than one conviction in a single trial. First, a defendant might still have a constitutional right to request severance of the offenses into separate trials. Second, even in the absence of an objection, it would seem that a trial court only has authority to accept a single general verdict from the jury in a trial for nonproperty offenses. [Code Cr.P. art. 37.07; Ex parte Siller, supra. ] We believe that, following our abandonment of the carving doctrine, the State effectively will have to obtain multiple convictions for nonproperty offenses through multiple trials until the Legislature alters pleading and verdict restrictions.
— S.W.2d at-, n. 13 (some citations omitted).
Concluding, as we must, that there is no genuine distinction between the situation presented here and that presented in Drake and Siller, we hold that the State is statutorily prohibited from consolidating for trial two or more charging instruments alleging offenses that do not arise out of the same “criminal episode” as defined in Pen.Code § 3.01. We further hold, in accordance with the teaching of Drake and Siller, that where such a trial results in the defendant’s conviction for more than one of the erroneously consolidated offenses, the defendant is entitled to relief if he preserved the error by an appropriate trial objection or if the offenses for which he was convicted arose out of the same “criminal transaction.”
For the purposes of the
Drake-Siller
principle, “criminal transaction” has been narrowly defined as a single criminal act, or two or more acts if they are actually variations of the same act such that a “single guilty intent” runs through and connects both acts.
McEntire v. State,
The evidence shows that appellant had more than one guilty intent on the morning in question. He first had the intent to burglarize a residence in Elgin; he then had the intent to operate a motor vehicle without the consent of the owners. We conclude, therefore, that the offenses charged against appellant arose from different criminal transactions,
see Holcomb v. State,
The judgments of conviction are affirmed.