Opinion

Washington v. State

  • 771 S.W.2d 537
  • 1989 Tex. Crim. App. LEXIS 38
Court
Court of Criminal Appeals of Texas
Filed
Mar 1, 1989
Status
Published
Author
Clinton
On the bench
Clinton, Duncan, McCormick, Miller
Cited by
79 cases
Authority
More cited than 21.0%

reasoning that because defendant did not object to any testimony on the ground of bolstering, no error was preserved for appellate review

How later courts described this case

  • reasoning that because defendant did not object to any testimony on the ground of bolstering, no error was preserved for appellate review
  • acknowledging that, although testimony was improper bolstering, it was harmless in light of the additional evidence of appellant’s guilt
  • holding no prejudice shown where evidence of guilt was overwhelming
  • even if counsel’s failure to object was outside the range of professional competent assistance, overwhelming evidence of defendant’s guilt made this error harmless

Written by the judges who cited it.

The opinion

CLINTON, Judge,

concurring.

In my view Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), is wholly inapposite here. Its “test” is an aid to the judiciary in determining whether Congress intended that the same act or transaction constitute separate offenses for purposes of imposing punishment for both offenses. Garrett v. United States, 471 U.S. 773 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985).

Such approaches to solving jeopardy problems do not lead to a resolution of a joinder issue; the latter is a pleading matter, rarely a problem under federal law. See generally Fed.R.Cr.Pro. 8(a), and Wright, Federal Practice and Procedure: Criminal 2d § 143 (2d ed. 1982).

Nor is resort to decisions under the late Texas Speedy Trial Act all that helpful, for special considerations informed the legislative formulation of “same offense” arising out of one transaction.

Assuming, as the majority must, that legislative limitation of Article 21.24 to property offenses effectively revived the statics quo ante with respect to joining other offenses, see Drake v. State, 686 S.W.2d 935, at 949 (Tex.Cr.App.1985), under common law rules melded into former statutes, there is no misjoinder here. Ibid. Thus there is no ground for objection.

With those observations and reservations about effectiveness of counsel, I join the judgment of the Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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