Petition for Writ of Certiorari — Moore v. Texas

84-119

NO.

CLERK

Office-Supreme Court, U.S.

FILED

JUL 10 1984

ALEX*SNDER L. STEVAS,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CHARLES MOORE,

PETITIONER

vs.

THE STATE OF TEXAS,

RESPONDENT

PETITION FOR CERTIORARI - CRIMINAL CASE

ROBERT E. RICHARDSON, JR.

Attorney at Law

118 S. Crockett

Sherman, Texas 75090

Telephone 214/893-7541

ATTORNEY FOR PETITIONER

JIM BOB DARNELL

Criminal District Attorney

P.O. Box 10536

Lubbock, Texas 79408

Telephone 806/741-8043

ATTORNEY FOR RESPONDENT

QUESTION PRESENTED

Did the Texas Court of Appeals err and

violate the rights to due process and of a

fair trial after determining that the

Petitioner had been convicted of three crimes

and assessed three separate punishments of 5,

3 and 3 years respectively for only one

criminal offense by arbitrarily selecting the

longest punishment assessed by a prejudiced

jury and reforming the judgment in such a

nanner.

LIST OF PARTIES

The following is a list of parties to the

proceedings:

1. Charles Moore

2. State of Texas

ii.

are ereegnem EN

AOE GREER NIN FEY ES . Se SO gO Re CN ’ o ios ta aa

TABLE OF CONTENTS

PAGE

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AT ee er a a ee ba

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Table of Authorities...... 1. seccees iv.

OpERAOR BOLGW ccccccccccecccesscesece Vs

Jurisdiction......... 90ee eh esevecees a.

Constitutional Provisions Involved... 1.

Statement of the Case .. ... .« «eee. 3.

Existence of Jurisdiction ........... 6.

CONCLUSION. ccccccccescces pack 868800 10.

ABBOREEEs co cccescoscseceevaseses senes 2s

iii.

TABLE OF AUTHORITIES

CASES

1. Beaupre v. State of Texas, 526 SW2d

, 816 (Tex. Cr. App. 1975), cert.

denied, 423 U.S. 1037, 96 S.Ct. 227,

46 LEd2d 147 (1975) wcccccccccccccccccs

2. Crocker v. State of Texas, 573 SW2d

1390, 197 Ms Fe ly Dee

3. Farese v. United States, 428 F2d 178

(5th Ds TEPER ews bEC ee ebb Ged Ss ESCCes

CONSTITUTIONAL PROVISIONS

1. United States Constitution,

Amendment itn epebb cb eabebeee see coeseaseces

2. United States Constitution,

Amendment ih hee eeee anne 6660660860468

3. United States Constitution,

Amendment are ee eee a eee eee ee

iv.

PAGE

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES MOORE,

PETITIONER

VS.

THE STATE OF TEXAS,

RESPONDENT

PETITION FOR CERTIORARI - CRIMINAL CASE

OPINION BELOW

The opinion of the Texas Court of Appeals

below (Appendix A, infra, p.12) has yet to be

reported. A petition for discretionary review

was refused by the Texas Court of Criminal

Appeals. (Appendix B, infra, p.23).

JURISDICTION

The opinion of the Court below (Appendix

A, Page 12) was entered on November 30, 1983.

Petitioner's petition for discretionary review

was refused by the Texas Court of Criminal

Appeals on May 9, 1984. Rehearing was not

sought. The jurisdiction of this Court is

invoked under 28 USC §1264(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. The 5th Amendment, United States

Constitution, which provides:

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, excepting cases arising in

the land or naval forces, or in the

militia, when in actual service in time

of war or public danger; nor shall any

person be subjected to the same offense

to be twice put in jepardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

1.

liberty, or property, without due process

of law, nor shall private property be

taken for public use, without just

compensation.

2. The 6th Amendment, United States

Constitution, which provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and

public trial, by an impartial jury of the

State and District wherein the crime

shall have been committed, which District

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor; and to have the

; assistance of counsel for his defense.

3. The 14th Amendment, Section 1, United

States Constitution provides:

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty or

property, without due process of law; nor

to deny to any person within its juris-

diction the equal protection of the law.

STATEMENT OF THE CASE

A. Course of Proceedings

The facts necessary to place in their

setting the questions now raised can be

briefly stated:

On August 3, 1981, in a cause then

pending in the 237th District Court of Lubbock

County, entitled the State of Texas v. Charles

Moore, Petitioner was found guilty by a jury

on an indictment of three counts of theft.

On August 28, 1983, the District Court

entered judgment and Peititoner was to serve

five years, three years, and three years

respectively for the three counts. This

judgment and sentence was reformed by the

Court of Appeals for the Seventh Supreme

Judicial District, $$ 2d_ (not yet

reported). The Court of Appeals held that

there was only one criminal offense committed

and reformed the judgdment to show one

conviction and selected the five year term as

the one Petitioner is to serve. Petitioner

had purchased several items and paid for them

with a check that had insufficient funds.

Rather than try for one offense of theft, the

State attempted to convict and punish

Petitioner for each individual article

purchased. The jury was lead to believe that

three different crimes had been committed and

punished accordingly. The Court of Appeals

reformed this judgment but in so doing chose

the longest sentence imposed by the jury as

the one Petitioner is to serve.

On January 27, 1984, Petitioner filed a

Petition for Discretionary Review with the

Texas Court of Criminal Appeals. On May 9,

1984, this Petition was refused.

B. Relevant facts concerning the underlying

convictions for theft.

The offenses alleged against Petitioner

arose out of his participation as a buyer at

an auction of farm machinery and equipment in

Lubbock County, Texas. Petitioner was the

successful bidder on seventy-five of the

auctioned items. For sixty-eight of the items

- including a tractor, a water tank, and a

tank trailer - he gave a check for $7,861.00

The check was deposited but it was returned

unpaid marked "N.S.F." (Appendix A.).

An indictment was returned alleging, in

three counts, that Petitioner had committed

the offenses of felony theft of three separate

items of personal property. Petitioner was

subsequently convicted of these three

offenses.

EXISTENCE OF JURISDICTION

Petitioner's rights to due process and

against double jeopardy were violated by the

Appellate court since it arbitrarily selected

the highest sentence from three convictions

after determining that Petitioner should have

only been convicted of one offense.

The case in question began when

Petitioner was indicted in one indictment

charging him with stealing three separate and

distinct items. He was tried for three

separate offenses; the jury was charged in the

guilt phase of trial on three separate thefts;

the jury was charged to find and return three

separate punishments, which it did.

However, the law in Texas is well settled

that in multiple count indictments arising

from a single transaction the state may allege

two or more of the offenses arising out of the

transaction in separate counts of the same

indictment, but a conviction may be had on

only one of these counts. Crocker v. State of

Texas, 573 SW2d 190, 197 (Tex. Cr. App. 1978).

6.

However, this rule in Texas has an adjoining

caveat. Namely, if muitiple counts from a

single transaction are tried by the State, the

court may either order the State to elect to

proceed only on one or instruct the jury that

a conviction can be had only upon one.

Crocker v. State of Texas, 573 SW2d 190, 197.

As the Texas Court of Appeals correctly noted,

the trial court failed to do either of these.

Instead, the trial court submitted all three

counts unconditionally and the jury returned

the verdict of guilty on each count, following

which the jury assessed Defendant's punishment

at respectively five years, three years, and

three years.

The Court of Appeals recognized that the

trial court erred but instead of reversing the

case simply chose the five year sentence as

the one defendant has to serve. As authority,

the Court of Appeals cited the case of Beaupre

vs. State of Texas, 526 SW2d 811,816

(Tex.Cr.App.1975), Cert.denied 423 US 1037, 96

Sup.Ct. 227, 46 L. Ed.2d 147 (1975). However,

7.

the reading of Beaupre shows that the

situation presented in that case is

distinguishable from the present In Beaupre

the defendant was charged in a single

indictment with rape and rape of a child. The

jury was not instructed as required in

Crocker. The Jury found the defendant guilty

of both crimes and assessed punishment for

each at not less than five years nor more than

25 years for each count. In Beaupre the court

noted that it was error for the defendant to

be convicted of two counts. However, since

the punishment for both was assessed the same

at not less than five years nor more than

twenty-five by the Jury the Appellete Court

simply reformed the judgment. Even assuming

this was constitutional, the present situation

is far different. Here, there were different

punishments assessed at five, three, and three

years respectfully. The Court of Appeals in

reversing the Judgment are the arbitrarily

chose the longest punishment. Such action

is clearly violative of appellant's Fifth and

Fourteenth Amendment rights of the United

States Constitution.

However, even if Appellant's Fifth and

Fourteenth Amendment rights have not been

violated, his Sixth Amendment rights have.

When the Court of Appeals selected the

sentence in question, they chose from three

sentences set by a prejudiced jury. By

charging the appellate with three separate

offenses, it was made to appear to these

jurors that they were in fact dealing with the

Defendant who had committed multiple theft and

was involved ina crime spree. There is

undeniable that there is a great deal of

difference in the impression made on the

average jury between a person who has been

accused of commiting one crime and one who has

been accused of commiting several separate

crimes. Any juror will react more

prejudicially against multiple crimes than

against single crimes.

9.

The sixth amendment guarantees the

accused the right toa fair trial. A fair

trial is one conducted before impartial and

unprejudiced jurors. See Farese vs. U.S., 428

F2d 178 (5th Cir.1970 Therefore, by

prejudicing the jury with its multiple count

charge and praying that the appellate had

engaged in a crime spree, appellete was denied

a fair trial. Furthermore, the jury set

sentences for the multiple count offenses in

this prejudiced attitude. Therefore, when the

Court of Appeals made a choice from the three

sentences, it chose from a prejudicially set

list.

CONCLUSION

The judgment below is directly contrary

and violative of the 5th, 6th and 14th

Amendments of the United States Constitution.

The decision by the Texas Court of Appeals to

reform the judgment against petitioner and to

assess punishment at five years was arbitrary

and comprecious. This petition for writ of

certiorari should therefore be granted.

Respectfuliy submitted,

LAW OFFICES OF ROBERT E.

RICHARDSON, JR.

ww. Hitet Eb techahoonr

pr

Robert E. Richardson, Jr.

118 S. Crockett Street

Sherman, Texas 75090

Telephone 214/893-7541

ATTORNEYS FOR PETITIONER

This is to certify that a true and correct copy

of the foregoing document was mailed to all

5, of record in accordance with ery Rules,

Oe Trane

ll.

NO. 07-82-0054-CR

IN THE COURT .OF APPEALS

FOR THE SEVENTH SUPEREME JUDICIAL DISTRICT

OF TEXAS, AT AMARILLO

PANEL D

NOVEMBER 30, 1983

CHARLES MOORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

FROM THE DISTRICT COURT OF LUBBOCK COUNTY;

237TH JUDICIAL DISTRICT; NO. 22,476;

HONORABLE ROBERT C. WRIGHT, JUDGE

Before REYNOLDS, C.J.,

and DODSON and COUNTISS, JJ.

12.

In a prosecution fer offenses conceived

to arise out of a criminal episode, a jury

convicted appellant Charles Moore of the three

offenses of felony theft alleged in three

counts ina single indictment. The jury

assessed appeliant's punishment at confinement

for, respectively, five years, three years and

three years.

Appellant seeks a reversal on seven

grounds of error. The material contentions are

narrowed for clarity and stated in the order of

resolution thusly: this Court lacks jurisdic-

tion over the appeal; the trial court erred in

failing to quash the indictment; the evidence

is insufficient to show the intent to commit

theft; appeallant was erroneously charged and

tried on three counts of theft in the absence

of an evidenced criminal episode; and he was

placed in double jeopardy.

We conclude that this Court is vested

with jurisdiction over the appeal and that,

although a criminal episode supporting

convictions for the three offenses of theft

alleged was not shown, a conviction for the

first-count offense of theft is supported by

the indictment and proof without placing

appeallant in double jeopardy. We, therefore,

reform the judgment and sentence and, as

reformed, affirm.

Appellant gave notice of appeal from his

convictions on 28 August 1981 to the Court of

Criminal Appeals, which then was vested with

appellate jurisdiction of all criminal cases.

Tex. Const. art V, § 5 (Vernon 1955). The

appellate record was transmitted from the trial

court and filed in this Court on 26 February

1982.

Challenging, with his fifth ground of

error, the jurisdiction of this Court to

entertain his appeal, appéllant contends that

since his 28 August 1981 notice of appeal was

given to the Court of Criminal Appeals then

having jurisdiction of all appeals in criminal

cases, he "had an absolute right to have his

appeal heard be the highest criminal court of

Texas " The premise underlying the contention

of the absolute right is these statements:

"The change in the law, effective September 1,

1981, allowing Courts of Appeal to hear

criminal appeals was equivalent to an ex post

facto law and deprived the Appellant of due

process of law;" and "When a statute alters the

rules of evidence it is unconstitutional to

apply it a ex post facto." We are not in

accord.

The change in the law to which appellant

directs attention has reference to the

constitutional amendments.and statutory

enactments respecting the appellate

jurisdiction of the Court of Criminal Appeals

and the courts of appeals on and after 1

September 1981. One of the constitutional

amendments mandates that jurisdiction of

appeals of all cases in which the death penalty

has been assessed is vested in the Court of

Criminal Appeals, which has final appellate

jurisdiction, and the jurisdiciton of appeals

in all other criminal cases is vested in the

"courts of appeals as prescribed by law." Tex.

Const. art. V, § 5 (Vernon Supp. 1982-1983).

Another constitutional amendment authorized the

Legislature to divide the State into supreme

judicial districts and establish a court of

appeals in each district with appellate

jurisdiction “under such restrictions and

regulations as may be prescribed by law." Tex.

Const. art. V, § 6 (Vernon Supp. 1982-1983).

Acting upon the constitutional

direction, the Legislature, after dividing the

State into supreme judicial districts and

establishing a court of appeals in each, Tex.

Rev. Civ. Stat Ann. arts. 198, 1817 (Vernon

Supp. 1982-1983), addressed the matter of

jurisdiction of those courts in criminal

appeals by prescribing that the courts "shall

have appellate jurisdiction coextensive with

the limits of their respective districts in all

criminal cases except those in which the death

penalty has been assessed." Tex. Code Crim.

Proc. Ann. art. 4.03 (Vernon Supp. 1982-1983).

The Legislature further prescribed that appeals

to the courts of appeals filed on or after 1

September 1981 shall be filed in the court of

appeals having jurisdiction, and provided for

the transfer of a limited number of appeals

then pending in the Court of Criminal Appeals

to the various courts of appeals. Act of June

8, 1981, ch. 291, § 149, 1981 Tex.Gen. & Spec.

Laws 820. In implementation thereof, the Court

of Criminal Appeals ordered, on 24 July 1981,

that the "appellate records in criminal cases

to be filed in an appellate ‘court on or after

September 1, 1981, regardless of when notice of

appeal was given, shall be filed in the

appropriate Court of Appeals, except for those

cases in which the Constitution and the

statutes specifically provide the appeal will

be directly to the Court of Criminal Appeals...

By the constitutional and statutory

scheme for appeals in criminal cases, the State

merely exercised its discretion, as it may, to

provide for diversity in appellate jurisdiction.

Ohio ex rel. Bryant v. Akron Metrop. Pk. Dist.,

281 U.S. 74, 81, 50 S.Ct. 228, 74 L.Ed. 710

(1930). Obviously and contrary to appellant's

premise, the appellate scheme does not

constitute an ex post facto law which, in the

Classical sense, “aggravates a crime or makes

a

a Gee

it greater than when it was committed or

similarly changes and inflicts greater punish-

ment than that which was proscribed when the

crime was committed." See Betancourt v. State,

590 S.W.2d 487, 489 (Tex.Cr.App. 1979), cert.

denied, 446 U.S. 942, 100 S.Ct. 2166, 64

L.Ed.2d 796 (1980). And, aside from the

reality that a rule of evidence is not involved

in a question of jurisdiction, there is no

deprivation of constitutional due process

where, as under the appellate scheme provided

in this State, all appellants have an equal

right in like cases to resort to the appellate

courts for redress. Ohio ex rel. Bryant v.

Akron Metrop. Pk. Dist., supra. The fifth

ground of error is overruled.

The offenses alleged against appellant

arose out of his participation as a buyer at an

auction of farm machinery and equipment in

Lubbock County. Travis Butler, who had con-

tracted with the owner of the farm properties

Piven

Pena ene

to sell them, conducted the auction. Appellant

was the successful bidder on seventy-five of

the auctioned items. For sixty-eight of the

items--including a Ferguson tractor and loader,

a water tank, and a tank trailer--he gave

Butler a check for $7,861. Butler deposited

the check for payment, but it was returned to

him unpaid, stamped "N.S.F." After being

unable to contact appellant personally, Butler

sent a registered letter addressed to appellant

at the address shown on appellant's check. The

letter was returned to Butler, marked

"unclaimed."

An indictment was returned alleging, in

three counts, that appellant had committed the

offenses of felony theft of three separate

items of personal property. By the first

count of the indictment, it was alleged that

appellant did

Ee eee

Pn emotes

|

intentionally and knowingly appropriate

property, to-wit: acquire property other

than real property, unlawfully, to-wit:

one (1) Ferguson tractor and loader of the

value of Two Hundred Dollars ($200.00) or

more but less than Ten Thousand Dollars

($10,000.00) from Travis Butler, without

the effective consent, to-wit: induced by

deception, of the owner, Travis Butler,

to-wit: person who had greater right to

possession of said property than the

Defendant, and with intent to deprive the

said owner of said property, ....

Similar language was contained in the second

and third counts of the indictment to allege

respectively the felony theft of a water tank

and a tank trailer.

Appellant attacks the sufficiency of the

indictment with his fourth ground of error,

under which he contends the court erred in

overruling his motion to quash the indictment

because of its confusing nature. He faults the

indictment since, in his view, it does not meet

the statutory standard for sufficiency. See

Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon

1966). The insufficiency occurs because, he

argues, with four “to-wits" in each count, a

person of common understanding would be lost.

Although the indictment counts are

inartfully drawn--see, e.g., 7 S. Willson,

Criminal Forms Ann. § 12.01, et seq. (Texas

Practice 1977); 2 Branch's Texas Annotated

Penal Statutes With Forms § 31.03 (3d ed. 1974)

-each count alleges that (1) appellant (2) with

intent to deprive the owner of the property (3)

appropriated the described property (4) without

the named owner's effective consent. The alle-

gations of these elements charged the offense

of theft. Tex. Penal Code Ann., §31.03(a)(b)(1)

(Vernon Supp. 1982-1983); Hughes v. State, 561

S.W.2d 8, 10 (Tex.Cr.App. 1978). In our view,

the “to-wits” were inserted to impart a cer-

tainty to the counts as drawn; but, if they

offend, they may be eliminated as surplusage

without detriment to the indictment, because

they are not descriptive of that which is

legally essential to charge the crime.

in

— oe

Smallwood v. State, 607 S.W.2d 911, 912

(Tex.Cr.App. 1980). In any event we conclude

that the language is sufficiently intelligible

to a person of common understanding to

adequately give the accused notice of the

offense charged and enable him to prepare his

defense. Accord, Terry v. State, 517 S.W.2d

554, 556 (Tex.Cr.App. 1975).

With an accompanying argument, appellant

submits there is record evidence that he

purchased two tank trailers at the auction and,

therefore, the indictment did not set out

specifically enough the items taken. However,

in his motion to quash the indictment,

appellant did not include a lack of specificity

of the items taken as a reason to quash the

indictment; hence, we need not entertain and

answer the argument. American Plan Food

Corporation v. State, 508 S.W.2d 598, 604

(Tex.Cr.App. 1974). Nevertheless, we notice

that the descriptions of the items taken are

sufficient when tested by a motion to quash,

Wood v. State, 632 S.W.2d 734, 736-37

(Tex.Cr.App. 1982), and we observe that a

variance between the allegation and proof does

not vitiate the indictment. Seiffert v. State,

501 S.W.2d 124, 126 (Tex.Cr.App. 1973). The

fourth ground is overruled.

By his third ground of error, appellant

challenges the sufficiency of the evidence to

show his intent to commit theft. The

insufficiency results, he argues, because the

evidence shows that when his $7,861 check was

presented to the bank for payment, he had a

balance of $3,885.71 on deposit, which was

ample to pay for the tractor and loader, the

water tank and the tank trailer that were value

at, respectively, $2,000, $650 and $475 by the

testimony. The challenge is unsupported by any

authority, and it is not credible.

Where, as in this cause, one obtains

property by issuing a check for the payment of

money when he does not have: sufficient funds on

deposit with the bank for “the payment in full

of the check," his intent to commit theft is

presumed if he does not pay the holder in full

within ten days after receiving notice that

payment was refused by the bank. Tex. Penal

Code Ann. § 31.06(a)(2) (Vernon 1974).

Appellant has not questioned the proof that he

acquired the described property by issuing his

check for it, that he did not have sufficient

funds on deposit with the bank to pay the check

in full, that he had notice the check was

dishonored by the bank, and that he did not pay

the holder of the check in full after

notification of its dishonor.

Thus, the presumption of intent to

commit theft by decepticn was alleged in the

indictment rests upon sufficient evidence.

Gawlik v. State, 608 SW.2d 671, 672-73

(Tex.Cr.App. 1980). The.force of the evidence

of intent is not dented by the evidence that

appellant had on deposit funds exceeding the

testimonial value of the property charged to

have been appropriated; the funds were not

sufficient to pay the check in full and full

payment was not made after notification that

payment was refused by the bank. Accord,

Ratcliff v. State, 504 S.W.2d 883, 884-86

(Tex.Cr.App. 19794), cert. denied, 423 U.S.

910, 96 S.Ct. 573, 46 L Ed.2d 412 (1975). The

third ground is overruled.

With his first ground of error,

appellant contends that the court erred in

allowing him to be charged and tried on three

counts of theft since there was no evidence of

a criminal episode. The State defends the

ee

charge and trial, insisting that the offenses

charged arose out of a criminal episode, i.e.,

“the repeated commission of any one offense

[against property]." See Tex. Penal Code Ann.

§ 3.01 (Vernon 1974). Therefore, the State

says, the joinder of and prosecution for those

offenses ina single trial is sanctioned by

§ 3.02(a) of the Penal Code, the State being

permitted to include all of the offenses in one

indictment with each offense stated ina

separate count. Tex. Code Crim. Proc. Ann.

art. 21.24(a) (Vernon Supp. 1982-1983).

The statutory sanction for the joinder

and prosecution of offenses arising out of a

criminal episode applies to separate and

distinct offenses against property, each

complete within itself, which are committed

during a continuing course of conduct. Tex.

Penal Code § 3.01 (Vernon i974). See Gordon v.

State, 633 S.W.2d 872 (Tex.Cr.App. 1982);

Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.

1978). However, where, as*-here, the alleged

offenses against property result at the same

time from one transaction and require the same,

common fact for the completion of each offence

alleged, only one offense is committed. See,

e.g., Koah v. State, 604 S.W.2d156 (Tex.Cr.App.

1980). In that event, the State may allege in

one count all of the property appropriated in

; the transaction and, upon proper proof, secure

one conviction, Pena v State, 422 S.W.2d 937,

939-40 (Tex.Cr.App. 1968); or the State may

allege two or more of the offenses arising out

of the transaction in separate counts of the

same indictment, but a conviction can be had

upon only one of the counts. Crocker v. State,

537 S.W.2d 190, 197 (Tex.Cr.App. 1978).

iain iciiaiaaiitaiae itt

In the present cause, the court, upon

submission of all three counts to the jury in the

absence of the State's election of a count to

proceed on., should have instructed the jury that

a conviction can be had on only one of the

counts. Id. The court did not do so; instead,

the court submitted all three counts uncondi-

tionally and the jury returned a verdict of

guilty on each count, following which the jury

assessed appellant's punishment at, respectively,

five years, three years and three years. The

court rendered judgments on the verdicts and

pronounced sentences accordingly, incorporating

the judgments in one judgment instrument and the

sentences in another sentence instrument. Not-

withstanding that appellant could be convicted on

only one count, Ex parte Easley 490 S.W.2d 570,

571 (Tex.Cr.App.1972), the multiple convictions

and sentences do not void the proceedings; the

judgment and sentence may be reformed to show a

proper conviction and sentence. Beaupre v.

State, 526 S.W.2d 811, 816 (Tex.Cr.App. 1975),

cert. denied, 423 U.S. 1037, 96 S.Ct. 227, 46

L.Ed.2d 147 (1975).

The record shows that the court

submitted, and instructed the jury to consider

whether appellant was guilty or not guilty of,

the offenses alleged in numerical order of the

counts in the indictment. The court also

submitted the punishment issues, and the jury

fixed the punishments, in the same order. It

follows that since the conviction for theft of

the Ferguson tractor and loader as alleged in

the first count of the indictment was returned

first, the trial court was without legal

authority to render judgment and pronounce

sentence on the verdicts for the second and

third counts in the indictment. Ex parte

Easley, supra. Therefore, since the conviction

for theft as alleged in the first count of the

indictment is supported by the evidence, the

only challenge to which has been overruled, the

conviction may be affirmed, and the later two

convictions may be reversed and their

prosecutions dismissed. Price v. State, 475

S.W.2d 742, 743-44 (Tex.Cr.App. 1972).

Consequently, it is ordered that: the

judgment is reformed to show that appellant is

guilty of the single offense of theft of

property of the value of $200.00 or more but

less than $10,000 as charged in Count I of the

indictment; the sentence is reformed to show

that appellant was found guilty of the single

offense of theft of property of the value of

$200.00 or more but less than $10,000, and that

he is sentenced to confinement in the Texas

Department of Corrections for an indeterminate

term (under the indeterminate sentence law then

in effect] of not less than two years nor more

than five years. Beaupre v. State, supra. The

recitations in the judgment and sentence that

appellant was found guilty of thef* as charged

in Counts II and III in the indictment and

sentenced to confinement for respective

indeterminate terms of not less than two years

nor more than three years are deleted, id.,

those convictions are reversed, and their

prosecutions are ordered dismissed. Price v.

State, supra, at 744.

Publish. Tex.Cr.App.R. 207(a).

To this extent, appellan”'s first ground

of error is sustained; in all other respects,

it is overruled. The reversals and ordered

dismissals of prosecutions moot appellant's

sixth and seventh grounds of error by which he

contends his conviction of theft of a tank

trailer as charged in Count III in the

indictment should be reversed for lack of

sufficient evidence.

With his second, an remaining, ground of

error, appellant contends that the rendering of

judgment on the three counts of theft placd him

in double jeopardy prohibited by the Federal

and State Constitutions. The same contention

was made ina similar situation and overruled

in Jones v. State, 482 S.W.2d 194 (Tex.Cr.App.

1972), cert. denied, 410 U.S. 932, 93 S.Ct.

1377, 35 L.Ed.2d 594 (1973). Adhering to the

rule in Jones, we overrule the second ground of

error.

*s reformed, the judgment is affirmed.

Charles L. Reynolds

Chief Justice

RO Se Re ee RE em ee a RE re

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS

RE: Case No. 0134-84 ‘© WN ye SS POSTAGE

STYLE: Moore, Charles a ee

| ng

\ / Se ee

| May 9,/:1984

On this day, the State's Petition for Discretionary

Review has been REFUSED.

Thomas Lowe, Clerk

27T OF CRIMINAL APPEALS

30X 12308, CAPITAL STATION

IN, TEXAS 78711

Jim D. Lovett

MAIL TO P. O. Box 904

Clarksville, TX 75426

™ BEST AVAILABLE COPY

STATE OF TEXAS

COUNTY OF GRAYSON,

I, Robert E. Richardson, do swear that

the Petition for Writ of Certiorari filed on

behalf of Charles Moore was deposited ina

United States Post Office, with first class

postage prepaid, and properly addressed to the

Clerk of the Supreme Court, Washington, D.C.

This Petition for Writ of Certiorari was filed

within the permitted time period.

fr

uf SUBSCRIBED AND SWORN to before me this

S day of July, 1984.

Richardson

ert E.