Drake v. State

TEAGUE, J.,

dissents for reasons stated in his opinion in Siller v. State, 686 S.W.2d 617 (Tex.Cr.App., delivered this day).

APPENDIX

Before the new penal code with its conforming amendments to the code of criminal procedure became effective, one statutory rule for pleading by the State was that provided by the 1965 version of Article 21.24, V.A.C.C.P., viz:

“An indictment, information or complaint may contain as many counts charging the same offense as the attorney who prepares it, acting in good faith, may think necessary to insert, but may not charge more than one offense. An indictment or information shall be sufficient if any one of its counts be sufficient.” 1

Facially the provisions seem clear and unambiguous, but as Presiding Judge Onion observed in his Special Commentary to former Article 21.24, the intended meaning of “offense” was subject to interpretation.

One immediate precursor to revised 21.24 was article 417, C.C.P.1924. It read:

“An indictment or information may contain as many counts, charging the same offense, as the attorney who prepares it may think necessary to insert. An indictment or information shall be sufficient if any one of its counts be sufficient.” 2

Another was a proviso in former article 408a, C.C.P.1925, originally enacted by Acts 1959, 56th Leg., ch. 390, p. 864, to govern just allegations of misdemeanors, viz:

“Provided, further, that in charging any such offense or any other offense of the grade of misdemeanor not more than one offense may be charged or alleged in the same complaint, information, or indictment.”

Both article 417 and article 408a proviso were merged into a rephrased Article 21.24 in the 1965 revision. See Historical Note to Article 21.24, as well as to Article 21.15, and Turner v. State, 462 S.W.2d 9, 23, n. 3 (Tex.Cr.App.1969) (Onion, J., dissenting). *946 Thus evident is that the Legislature deliberately caused to be added at the end of the first sentence the clause “but may not charge more than one offense.” But sometimes that which appears clear to some may be murky to others, and so it would be with Article 21.24.

The statutory genesis of former article 417 is article 433, C.C.P.1879; it was added during the revising process. II Willson's Criminal Texas Statutes (1888) 123-124. 3 In an annotation thereto Judge Willson noted, “Before the enactment of the preceding article it was permissible to charge two or more offenses in separate counts of the same indictment.” He was paraphrasing what then Presiding Judge White had written in Boles v. The State, 13 Tex.App. 650 (Ct.App.1884), after reviewing earlier decisions finding and following common law rules previously explicated by scholarly writers such as Messrs. Archbold, Bishop and Wharton. Id., at 655-656 . Those decisions range from counts in charging instruments alleging different modes of committing the same criminal act to allegations of separate and distinct offenses, and respective consequences. 4

After 1879 when the Court had occasion to address article 433, its decisions seem to be reading into the statute some of the common law on the same subject, though it did not always mention the statute. 5

Judge Willson also quoted at length from what he may have regarded as a leading opinion on the matter — Boren v. The State, 23 Tex.App. 28 , 4 S.W. 463 (Ct.App.1887). The case involved but one criminal act: theft of a steer. The two count indictment simply alleged different factual contingencies relative to the taking. However, writing for the Court, Judge Hurt relied solely on writings of Mr. Bishop to find a test for determining sufficiency of each count, and by quoting extensively from his work, 1 Bish.Crim.Proc. 421, 422, laid out principles concerning counts, viz:

“The word ‘count’ is used when, in one finding by the grand jury, the essential parts of two or more separate indictments, for crimes apparently distinct, are combined; the allegations of each being termed a ‘count,’ and the whole an ‘indictment.’[ 6 ] And an indictment in several counts, therefore, is a collection of several bills against the same defend *947 ant for offenses which on their face appear distinct, under one caption, and found and endorsed collectively as true by the grand jury. The object is what it appears to be; namely, in fact to charge the defendant with the distinct offenses, under the idea that the court may, as often as it will, allow them to be tried together, thus averting from both parties the burden of two or more trials; or, in another class of cases, to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs, or a legal doubt as to what form of charge the court will approve.”

And he further quoted from Bishop, at 426:

“On the face of the indictment, therefore, every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of joinder of offenses that the joinder of counts is admitted.”

Prom all that Judge Hurt concluded that “each count is to be considered as charging a distinct offense” when testing for sufficiency of allegations in each count; he did not notice the 1879 statute at all. Thus, it is Mr. Bishop’s dictum more than Judge Hurt’s conclusion that Judge Willson set forth in his annotation to article 433. 7

Similarly without citing art. 433, the Court explained in Crawford v. State, 31 Tex.Cr.R. 51 , 19 S.W. 766 (Ct.App.1892):

“The object in inserting various counts in an indictment is not to secure separate convictions for as many counts, but to meet the various phases of the testimony; and it is permissible and proper to charge all the felonies which go to make up the offense committed by the defendant, but not to charge different offenses committed at different times and in different transactions. ... Where two or more felonies are charged in the same indictment, the presumption is that they are parts of the same transaction, and are to be sustained by the same evidence; and while they all may be submitted to a jury, there can be but one conviction which, as it were, appropriates the guilty intent which runs through and connects these several acts or offenses and makes them one. [Citations and quotes from Messrs. Bishop and Archbold and decisions from other jurisdictions, as well as the Court, omitted].”

The Crawford opinion was written by Judge Simpkins, and in a context of charging instruments it seems to be one of the earliest to elucidate the notion of a “transaction” — something broad enough to embrace two or more contemporaneous “acts or offenses” committed by an accused. 8 Agreeably in effect, again without refer *948 ence to article 433, is Shuman v. State, 34 Tex.Cr.R. 69 , 29 S.W. 160, 161 (1895). Shortly, however, the Court resumed judicially glossing article 433 with common law rules.

In Dill v. State, 35 Tex.Cr.R. 240 , 33 S.W. 126 (1895), the indictment alleged in separate counts burglary and conspiracy to commit the same burglary, respectively. After the State closed its evidence, a motion by Dill to have it elect which count would be prosecuted was denied. Addressing his bill of exception for the Court, then Presiding Judge Hurt wrote:

“Now, while it is true that the offense called ‘conspiracy’ was complete when the positive agreement was made ... to commit the burglary, and it is also true that the burglary and the conspiracy to commit the same are distinct offenses, still they may constitute but one criminal transaction. Our statute (article 433 ...) provides that an indictment or information may contain as many counts charging the same offense as the attorney who prepares it may think necessary to insert. If the statute means when it says ‘the same offense’ that the offenses must be technically the same, then theft and swindling cannot be inserted in the same indictment, in separate counts, nor can theft and receiving the stolen property, nor rape and incest, because technically, they are separate and distinct offenses. We understand the meaning of the word ‘offense, ’ as used in this statute, to be the same criminal transaction. That being so, the rule is that counts may be joined in the same indictment to meet the various aspects in which the evidence may present itself.”

That construction of the statute was adhered to in the several cases that mentioned it. See, e.g., Johnson v. State, 52 Tex.Cr.R. 201 , 107 S.W. 52, 53 (1908) (charging burglary of private residence at night in one count and burglary in daytime in the other, expressly provided by article 469, C.C.P.1895 [formerly article 433], is “simply charging the same offense in different ways” in order to meet possible contingencies arising from facts developed at trial); Longoria v. State, 80 Tex.Cr.R. 123 , 188 S.W. 988, 999 (1916) (pleading “the same transaction or offense” in two counts not only “expressly authorized by our statute” but is commended); Wilson v. State, 80 Tex.Cr.R. 266 , 189 S.W. 1071 (1916) (charging “different phases of the same transaction under the same statute” in two counts not only proper and “expressly provided for by statute,” but “commendable as good criminal pleading”); Smith v. State, 81 Tex.Cr.R. 534 , 197 S.W. 589, 590 (1917); Todd v. State, 89 Tex.Cr.R. 99 , 229 S.W. 515, 516 (1921) (duplicity under statute); Estell v. State, 91 Tex.Cr.R. 481 , 240 S.W. 913, 914 (1922) (permissible to insert several counts in an indictment which charge offenses similar in kind or which might find support in same kind of testimony); Wimberley v. State, 95 Tex.Cr.R. 102 , 252 S.W. 787, 789 (1923) (practice of charging different offenses in separate counts to meet the evidence that may be disclosed on trial often commended); see also Bumry v. State, 150 Tex.Cr.R. 6 , 198 S.W.2d 887, 889 (1947). And no doubt some opinions preter-mitted citing the statute in favor of opinions of the Court that had done so.

Soon after the 1965 procedural code went into effect the Court decided Vannerson v. State, 408 S.W.2d 228 (Tex.Cr.App.1966), and about revised Article 21.24 wrote:

“We do not construe this statute as a prohibition against charging several ways in which one offense was committed, or charging more than one offense based upon the same incident, act or transaction. Jarnigan v. State, 171 Tex.Cr.R. 136 , 345 S.W.2d 754 [ (1961) ].”[ 9 ] *949 Id., at 229 . 10 Vannerson became the seminal opinion on construction of former Article 21.24. 11 See, e.g., Rose v. State, 427 S.W.2d 609, 611 (Tex.Cr.App.1968); Breeden v. State, 438 S.W.2d 105, 107 (Tex.Cr.App.1969); Steambarge v. State, 440 S.W.2d 68, 70 (Tex.Cr.App.1969); Hughes v. State, 455 S.W.2d 303, 305 (Tex.Cr.App.1970); Brown v. State, 475 S.W.2d 938, 945-946 (Tex.Cr.App.1971); Ex parte Easley, 490 S.W.2d 570, 571 (Tex.Cr.App.1972); Tibbetts v. State, 494 S.W.2d 552, 555 (Tex.Cr.App.1973); Crocker v. State, 573 S.W.2d 190, 197-199 (Tex.Cr.App.1978) 12 ; Koah v. State, 604 S.W.2d 156, 159 (Tex.Cr.App.1980). 13 For opinions relying on progeny of Vannerson , see, e.g., Martinez v. State, 498 S.W.2d 938, 943 (Tex.Cr.App.1973); Ellard v. State, 507 S.W.2d 198, 200 (Tex.Cr.App.1974); Hicks v. State, 508 S.W.2d 400, 403 (Tex.Cr.App.1974); Peterson v. State, 508 S.W.2d 844, 847 (Tex.Cr.App.1974); Stephens v. State, 522 S.W.2d 924, 928 (Tex.Cr.App.1975), after abatement in 509 S.W.2d 363 (Tex.Cr.App.1974); Jurek v. State, 522 S.W.2d 934, 940-941 (Tex.Cr.App.1975); Beaupre v. State, 526 S.W.2d 811, 816 (Tex.Cr.App.1975). The offense in every case just cited predated January 1, 1974.

As things stood in 1973, then, the common law rules of allowable pleading of matters in separate counts of a single indictment, and the permissible consequences of doing so, had been melded with predecessor articles before the 1965 changes in Article 21.24. Vannerson, supra, found that the 1965 changes in language did not alter prior construction of precursors, and its followings never deviated from the essence of Vannerson . The problem posed by Presiding Judge Onion had been solved: in the clause “but may not charge more than one offense,” “offense” meant “criminal transaction.” Within that framework there could be multiple prosecutions, but only one conviction and concomitant punishment for but one offense.

. AH emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. Though the statute includes "information,” it and its predecessors seem to have been applied only to felonies, for early and late the Court held that a charging instrument may contain "several counts charging different misdemeanors,” Alexander v. State, 27 Tex.App. 533 , 11 S.W. 628, 629 (1889) and Green v. State, 167 Tex.Cr.R. 272 , 320 S.W.2d 818, 824 (1959); see also Donahoo v. State, 159 Tex.Cr.R. 334 , 264 S.W.2d 108, 109 (1954). In 1959 the Legislature changed the rule.

. The compiler was Sam A. Willson who contemporaneously was Judge Willson of the former court of appeals. See 11 S.W. (iii).

. See, e.g., Dalton v. The State, 4 Tex.App. 333 (Ct.App.1878); Barnwell v. The State, 1 Tex.App. 745, 747 (Ct.App.1877); Waddell v. The State, 1 Tex.App. 720, 721 (Ct.App.1877); Weathersby v. The State, 1 Tex.App. 643, 645 (Ct.App.1876); Dill v. The State, 1 Tex.App. 278 , 286 (Ct.App.1876).

. In Gonzales v. State, 12 Tex.App. 657 (Ct.App.1883) the indictment contained two counts pertaining to the same burglary, one alleging it occurred in daytime, the other at night; alluding to article 433, the Court upheld the pleading on the proposition that the counts were necessary to meet whatever the evidence might show. In Boles v. The State, 13 Tex.App. 650 (Ct.App.1884), though the Court did recognize article 433 "as an express statute upon the subject” of criminal pleading and practice, it did not particularly construe it; rather, it approved an indictment pleading forgery in one count and uttering a forged instrument in another count “because in their nature the offenses are very similar,” making clear, however, that conviction on only one count was permissible. Id., at 655-656 . In a context of burglary and theft charged respectively in counts of one indictment, Miller v. State, 16 Tex.App. 417 , 420 (Ct.App.1884), is to the same effect. Then, confronting a three count indictment in Shubert v. The State, 20 Tex.App. 320 (Ct.App.1886), the Court said, “It is not only permissible, but commendable, to insert in an indictment so many counts as will be necessary to provide for every possible contingency in the evidence,” citing art. 433 and Gonzales v. The State and Boles v. The State, both supra. Much the same would be said in Chester v. The State, 23 Tex.App. 577 , 5 S.W. 125, 126 (Ct.App.1887), about an indictment alleging forgery in one count and attempting to utter or pass in the other. Authorities supporting one rule were collected in Mason v. State, 29 Tex.App. 24 , 14 S.W. 71 (Ct.App.1890):

“It is the rule of the common law, followed in numerous decisions in this state, that it is not a valid objection to an indictment that it charges separate and distinct offenses, in several counts, even when the offenses charged are felonies, if they be of the same character, differing only in degree. [Host of citations omitted, including many described ante ]”.

.Emphasis in original.

. Though an editor paraphrased the first excerpt from Mr. Bishop and attributed it to Boren, see n. 2, annotations to Article 21.24, one may observe that such is not included in any headnote to the decision reported at 4 S.W. 463 . Understandably, then, rarely has Boren been relied on for establishing Mr. Bishop's dictum; but see Thomas v. State, 621 S.W.2d 158, 162 (Tex.Cr.App.1981).

. Compare Clark v. State, 28 Tex.App. 189 , 196, 12 S.W. 729 (Ct.App.1889), quoting Mr. Bishop: “In robbery 'the indictment may charge the defendant in the same count with felonious acts with respect to several parties ... if it was all one transaction.’ ”

Earlier in resolving a jeopardy problem, the Court had also resorted to Mr. Bishop, viz:

"There is a difference between a crime and a criminal transaction. A criminal transaction may be defined to be an act, or a series of acts, proceeding from one wrongful impulse of the will, of such nature that one or more of them may be indictable. * * * In reason, there may be any number of distinct crimes in a single criminal transaction. This comes from the fact that ... it is impossible that there should be an exact outline of crime whose circumference shall exactly coincide with every criminal transaction. The consequence is that the law does, what it must, declare this combination of act and intent to be indictable; then another combination, and another, and so on, until it has proceeded far enough, when it stops. And when this is done it is impossible that the inhibitions should be so distinct that no one shall embrace anything forbidden by another. Therefore, it is established doctrine that more than one offense may be committed by man in one transaction.”

Whitford v. State, 24 Tex.App. 489 , 6 S.W. 537 (1887).

. The contention was that such pleading offended then recently enacted article 408a, supra, prohibiting alleging two different misdemeanors in one information. The Court concluded:

"Clearly, it was the intent of the Legislature to prohibit the charging of more than one separate offense in an indictment and not a prohibition against charging several different ways in which one offense might be committed. Hood v. State, 334 S.W.2d 302 ... does not support his contention because in that case the information charged two separate and dis *949 tinct offenses involving separate and distinct transactions.”

Id., 345 S.W.2d at 755 . (Emphasis in original). Hood v. State, supra, and Hill v. State, 169 Tex.Cr.R. 104 , 332 S.W.2d 579 (1960), are to the effect that unless waived the statute imposed a mandatory requirement that “but one offense be alleged.”

. Jamigan, supra, is a negligent homicide case, in which the offense was alleged in two counts, differing only in degree.

. In the judgment of the writer the Vannerson Court misapprehended the 1965 revision. For some ninety years precursors to Article 21.14 had been construed to permit charging two or more felony offenses arising from the same criminal transaction — knowledge of which is attributable to members of the Legislature, as well as to the late Fred Erisman and members of the State Bar Special Committee for the Revision of the Code of Criminal Procedure of which he was chairman. No change was needed to retain that settled construction and its correlative caveat that separate offenses out of different transactions may not be joined. That they took the provisions of former article 414 and deliberately added to its first sentence "but may not charge more than one offense” patently was intended to have an effect other than "offense" as thus used is really “criminal transaction.” The Court must have overlooked the fact that Article 21.24 was derived from article 417 and the proviso in article 408a that clearly was intended to preclude charging more than one misdemeanor offense in a single charging instrument.

. Though Crocker was decided in 1978, all serial acts making up the offense of castration occurred prior to the effective date of the new penal code and its conforming amendments; indeed, the former article denouncing that offense was repealed by the new code. Thus, Crocker does not purport to interpret Article 21.24 as rewritten in 1973.

. Like Crocker, supra, the offenses under the Blue Sky Law in Koah were committed in June 1973, before the effective date of Article 21.14 as amended.