# Johnson v. State

> Court of Appeals of Texas · September 16, 1987 · 737 S.W.2d 901

URL: https://www.frixlaw.com/law-library/cases/9769010

## Case

- **Full name:** Calvin Lee JOHNSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** September 16, 1987
- **Citations:** 737 S.W.2d 901; 1987 Tex. App. LEXIS 8624
- **Precedential status:** Published
- **Opinion:** Concurring in part by Burgess
- **Judges:** Brookshire, Burgess
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769010

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769010. Public record. Not legal advice.