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
The opinion
CAMPBELL, Judge,
dissenting.
Once again I must dissent to this Court’s backward step into the quagmire of “fundamental error.” It would seem that when this Court is confused or in doubt about a legal concept, we resort in utter desperation to that talismanic phrase before which everything quakes and eventually tumbles to earth, “fundamental error.”
In this cause, nowhere, no time, and in no way did the appellant object to being tried for burglary and aggravated sexual assault in the same trial. Perhaps he only had funds available to pay his attorney for only one trial. Perhaps his attorney felt that it was better tactical strategy to dispose of these two offenses in one trial rather than two. Whatever, the plain fact is that no objection was lodged to the proceeding and we assume therefore that appellant acquiesced in this proceeding.
The majority now holds that this whole proceeding is void. Under what theory? Art. 1.14(a) V.A.C.C.P. provides that a defendant may waive any rights secured him by law except the right of trial by jury in a capital felony case. In 1985, the Legislature added Art. 1.14(b) supra, providing that if the “defendant does not object to a defect, error or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding....” This addition, of course, only applies to charging instruments returned on or after December 1, 1985, but it quite obviously manifests the intent of the Legislature to look with disfavor upon the very concept of fundamental error in charging instruments.
The majority, having laid the fundamental error groundwork, then tells us that when the State violates the misjoinder rule, the defendant has three options. Two of those options, however, entail educating the State that it has made a grievous error, thereby affording the State the opportunity to right its torpedoed ship and to continue on its journey toward the conviction of the defendant, either through a corrected *372 pleading, a timely election, or perhaps through the introduction of the flawed accusation as an extraneous offense.
That brings us to the third option identified by the majority, which in my view may be the only option that will be employed by an observant and intelligent lawyer, i.e., do absolutely nothing until an appeal is taken; an automatic reversal may then be obtained because of the majority holding that the error is fundamental. What this holding teaches us is that misjoinder under Art. 21.24 Y.A.C.C.P. only exists in reality on appeal, leaving misjoinder at the time of trial as, in reality, an error without a remedy.
But having progressed now to the end of this saga, the majority, having found fundamental error, seeks a painless remedy to the misjoinder. Select one conviction. Leave it intact. Select another conviction. Reverse it. Incredible!!!
Please register my dissent.
McCORMICK, J., joins.