officer’s testimony that the appellant’s sister had told him that the appellant was her brother was offered to prove the identity of the driver of the car
How later courts described this case
- officer’s testimony that the appellant’s sister had told him that the appellant was her brother was offered to prove the identity of the driver of the car
Written by the judges who cited it.
The opinion
BURGESS, Justice,
concurring and dissenting.
I concur in the result reached concerning count I of the indictment. I respectfully dissent to the disposition of point of error number fifteen relating to count II. The majority affirmatively states, “We are not willing to abandon our decision in Fortune v. State, 699 S.W.2d 706 (Tex.App.—Beaumont 1985, pet. granted),” then apparently follows, not the holding of Fortune , but the footnote. If the majority were indeed not abandoning the Fortune decision, it would be constrained to sustain the point of error.
The point of error encompasses the ongoing debate concerning Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985), Ex parte Siller, 686 S.W.2d 617 (Tex.Crim. App.1985), and tangentially, Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.), ce rt. denied, 459 U.S. 1036 , 103 S.Ct. 447 , 74 L.Ed.2d 602 (1982). Both Drake and Siller involved two felony offenses charged in the same indictment. In Drake , both convictions stood because the two offenses alleged were different transactions, and since Drake failed to compel the state to elect, he waived any error. In Siller, however, the two offenses alleged arose out of the same transaction. Here, the two offenses arose out of the same transaction, also. I would hold, therefore, as Fortune did, that the second conviction must be set aside and vacated, see also Taylor v. State, 693 S.W.2d 4 (Tex.App.—Beaumont 1985, pet. ref'd) (On Motion for Rehearing), but that since it is void, a retrial may be had. Ex parte Easley, 490 S.W.2d 570 (Tex.Crim.App.1972).