Opinion

Fortune v. State

  • 745 S.W.2d 364
  • 1988 Tex. Crim. App. LEXIS 12
  • 1988 WL 4303
Court
Court of Criminal Appeals of Texas
Filed
Jan 27, 1988
Status
Published
Author
Teague
On the bench
Teague, Campbell, Miller, McCormick, Clinton
Cited by
50 cases
Authority
More cited than 10.9%

Overruled on other grounds by Ex Parte Fortune, 1990 Tex. Crim. App. LEXIS 163 (1990)

criticizing the Court's occasional lack of analysis and resort to that talismanic label "void" before which "everything quakes and eventually tumbles to earth"

How later courts described this case

  • criticizing the Court's occasional lack of analysis and resort to that talismanic label "void" before which "everything quakes and eventually tumbles to earth"
  • no waiver of error for failure to object to indictment that joined two offenses
  • misjoinder of offenses is fundamental error subject to review at any time

Written by the judges who cited it.

Later courts went against this

  • Overruled on other grounds by Ex Parte Fortune, 1990 Tex. Crim. App. LEXIS 163 (1990)

    745 S.W.2d 364, 367 (Tex. Crim. App. 1988), overruled on other grounds by Ex parte Fortune, 797 S.W.2d 929
    Court of Criminal Appeals of TexasOct 24, 1990other groundsmedium confidenceRead it

The opinion

OPINION JOINING JUDGMENT OF THE COURT

TEAGUE, Judge.

The record in this cause reflects that appellant was charged by a single indictment with committing the felony offenses of burglary of a habitation with intent to commit the felony offense of sexual assault, which, as a matter of law, is a property offense, and aggravated sexual assault, which, as a matter of law, is a non-property offense. Art. 21.24(a), V.A.C. C.P., expressly provides that “Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code”, which relates to property offenses. (My emphasis.) Thus, it is only in the instance when an indictment alleges multiple offenses, and such offenses are offenses against property, that multiple convictions may he obtained on that indict *371 ment against the defendant. Here, there was clearly a misjoinder of offenses. Appellant is entitled to relief as to one of the convictions. The court of appeals correctly so held. See Fortune v. State, 699 S.W.2d 706 (Tex.App.-9th Dist.1985). The majority opinion by Judge Miller correctly affirms the judgment of the court of appeals.

In the concurring opinion that I filed in Ex parte Siller, 686 S.W.2d 617, 620 (Tex.Cr.App.1985), I argued, either expressly or implicitly, that because Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985), was in conflict with what this Court had stated and held in Ex parte Siller, supra, it should be expressly overruled. Today, this Court, through Judge Miller's opinion, does just that; it expressly “overrules that portion of the Drake opinion which holds that when the State joins two or more offenses arising out of different transactions, such error must be objected to at trial or waived on appeal.” Therefore, I enthusiastically join Judge Miller’s opinion. 1

Hopefully, in the very near future, this Court will also expressly overrule its majority opinion of Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986), for the reasons that I expressed in the concurring and dissenting opinion that I filed in that cause, because, even though the court of appeals in this cause did not cite or discuss Rathmell, supra, by some of its suggestions in its opinions, it appears to me that it may have erroneously relied upon what the majority opinion in Rathmell, supra, erroneously stated and held. Thus, if this Court will expressly overrule Rathmell, supra, this should discourage the courts of appeals from suggesting what the Ninth Court of Appeals did in its opinion in this cause.

. Judge Miller has clearly demonstrated by his opinion for the Court that he knows how to use a weedeater, by the way he removes all of the weeds from the weedy opinion of Ex parte Siller, supra. I also find that Judge Miller has also demonstrated that he is one fine fisherman by the way he guts Ex parte Drake, supra.

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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