# Billings v. State

> Court of Appeals of Texas · January 22, 1987 · 725 S.W.2d 757

URL: https://www.frixlaw.com/law-library/cases/9764805

## Case

- **Full name:** John P. BILLINGS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** January 22, 1987
- **Citations:** 725 S.W.2d 757; 1987 Tex. App. LEXIS 7107
- **Precedential status:** Published
- **Opinion:** Dissent by Murphy
- **Judges:** Brown, Robertson, Murphy
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MURPHY, Justice,
dissenting.
I respectfully dissent. The majority relies on Ex Parte Siller, 686 S.W.2d 617 (Tex.Crim.App.1985) to reform the judgment and set aside the convictions for the offenses of misapplication of fiduciary property and official misconduct. I would go further than the majority and hold that the failure by the trial judge to grant appellants motion to sever constituted reversible error.
I agree with the majority that appellant has not preserved his second point of error with regard to counts one and two of the indictment, however I disagree with the analysis set out on the assumption that the point was preserved. Again the majority is confusing “counts” with “offenses” as it did in Romine v. State, 722 S.W.2d 494 (Tex.App.—Houston [14th Dist.], 1986).
Tex.Code Crim.Proc.Ann. art. 21.24(a) (Vernon Supp.1986), allows the state to join two offenses in a single charging instrument if they arise out of the same criminal episode. According to Chapter Three of the Texas Penal Code, criminal episode means the repeated commission of any one offense defined in Title Seven of the code. See Tex.Pen.Code Ann. § 3.01 (Vernon 1974).
Therefore, two separate property offenses both defined in Title Seven, cannot be joined in a single charging instrument. *764 See e.g., Jordan v. State, 552 S.W.2d 478, 479 (Tex.Crim.App.1977) (burglary and theft); Keimig v. State, 669 S.W.2d 121, 124 (Tex.App.— Houston [14th Dist.] 1983, pet. ref 'd) (auto theft and burglary). The offense of theft is defined in Tex.Pen.Code Ann. § 31.03(a) (Vernon Supp.1986): A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. The offense of misapplication of fiduciary property is defined in Tex.Pen.Code Ann. § 32.45(b) (Vernon 1974): A person commits an offense if he intentionally, knowingly or recklessly misapplied property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.
Theft and misapplication of fiduciary property are different offenses. The elements of the offenses are different. Furthermore, the two offenses fall under different chapters of the penal code: theft offenses are found in chapter 31 and misapplication of fiduciary property is found in chapter 32, Fraud, subchapter D, Other Deceptive Practices.
If appellant had properly preserved error, I would hold the misjoinder of the two separate property offenses in appellant’s indictment was reversible error. See Sifford v. State, 704 S.W.2d 571 (Tex.App.—Corpus Christi 1986, no pet.) and Callins v. State, — S.W.2d — No. 69,023 (Tex.Crim.App., July 2, 1986) (not yet reported).
Appellant did, however, move for a severance on the ground that the third count of each indictment did not consist of an offense defined in Title 7 of the Texas Penal Code. In other words, he objected to the joinder of a non-property offense (Official Misconduct) being defined in Title 8 with a property offense (Theft) defined in Title 7.
In Callins, supra, the Court of Criminal Appeals said:
We recently held that the Legislature, by its amendment of Article 21.24, V.A. C.C.P. has implicitly prevented the State from alleging in a single indictment two or more nonproperty offenses if those offenses arose out of the same criminal “incident, act or transaction.” Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). From our reasoning in Drake, supra we must also conclude that Article 21.24 supra implicitly prevents the State from alleging both property and nonpro-perty offenses together in the same indictment.
I would hold the trial court erred in refusing to grant appellant’s Motion for Severance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764805. Public record. Not legal advice.