Coleman v. State

• Decision Date: 25 April 1990
• Docket Number: No. 1089-87,1089-87
• Citation: 788 S.W.2d 369
• Parties: Terrence James COLEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 369

788 S.W.2d 369

Terrence James COLEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 1089-87.

Court of Criminal Appeals of Texas En Banc.

April 25, 1990.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., and Mike Anderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S AND APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury upon a single indictment of two counts of aggravated robbery. See V.T.C.A., Penal Code Sec. 29.03. Appellant pled guilty to both counts, and the jury assessed punishment at five years in the Texas Department of Corrections ¹ for each count. On direct appeal, the court of appeals affirmed appellant's conviction on the first count and reversed his conviction on the second count, ordered it severed from the first count, and remanded it to the trial court for further disposition. Coleman v. State, 735 S.W.2d 475 (Tex.App.--Houston [1st] 1987), motion for reh'g denied.

Petitions for discretionary review come to us from both appellant and the State. Both parties challenge the correctness of the court of appeals' holding that the trial court improperly denied appellant the right to have the offenses in each count severed pursuant to V.T.C.A., Penal Code, Secs 3.01-3.04. Appellant, in his first ground for review, attacks the remedy of the court of appeals, i.e., reversal of only the second count since it should have been severed, and asserts that both convictions should have been reversed. The State, in its sole ground for review, asserts that the court of appeals erred in its holding because appellant's motion was a motion to elect, not a motion to sever, and therefore the trial court's ruling was proper. We granted review of both petitions and will address these contentions first. In addition, appellant raises five remaining grounds for review, all of which challenge the correctness of the court of appeals' holding concerning the constitutionality of the jury instruction pertaining to parole laws. We also granted review of these grounds. ² We will vacate the judgment of the court of appeals and remand.

In order to address appellant's first and the State's only ground for review, a detailed recitation of the procedural posture of the case is helpful. In a single indictment, appellant was charged with two counts of aggravated robbery. The first count alleged that appellant committed aggravated robbery of Jesse Valdez. The second count alleged that appellant committed aggravated robbery of Lisa Valdez. Both counts were alleged to have been committed on or about August 14, 1985. The evidence indicated that both victims were robbed during the same raid on the Valdez apartment by appellant and some colleagues.

At trial, after the jury had been selected, impaneled, and sworn in, but outside their presence, appellant informed the trial judge that he wanted to enter a plea of guilty to one or both counts. There was no plea bargain. The trial judge then admonished appellant of the consequences of such a plea, and appellant indicated that he understood. At that point, defense counsel made a verbal motion which the trial judge denied in the following colloquy:

DEFENSE COUNSEL: I would like to present a motion, verbal motion, Your Honor, to force the State to elect between these two counts. We are going to plead guilty to Count No. I, therefore the second count, which arises out of the same transaction, is superfluous, and we would request the Court to instruct the State which count they wish to go on before the Court.

THE COURT: Does the State want to respond?

PROSECUTOR: I believe the case law is clear, that although this may have been the same transaction, any time more than one person is threatened with a firearm by a person in anticipation of taking the Complainant's property, then as many counts as there are people threatened can be filed and prosecuted, and we intend to follow through with that, because these are the circumstances we allege.

DEFENSE COUNSEL: Your Honor, if I may respond to that very briefly. It's my position that an aggravated robbery as opposed to a crime of property is an assaultive crime, and therefore I request that the Court ask the State to elect which count they wish to go on. Thank you, sir.

THE COURT: I am going to deny your request to require the State to abandon the second count. Is that the one you wanted them to abandon?

DEFENSE COUNSEL: I am just asking the State to elect which count they wish to go on. It would be their choice, Your Honor.

THE COURT: I am not going to order them to abandon counts. If they want to proceed on both counts, we will proceed on both counts at this time.

DEFENSE COUNSEL: Thank you, Your Honor.

After this exchange, the State presented the indictment, including both counts, and appellant entered his pleas of guilty to both counts. The trial then proceeded on the issue of punishment only ³, and the jury returned separate verdicts of guilty for each count.

As stated earlier, appellant contends, and the court of appeals agreed, that the verbal motion was a motion to sever the two offenses into two separate trials. The State argues that it was a motion to force the State to elect one offense on which to proceed at that trial and abandon the other. Thus, the threshold issue is the nature of appellant's motion.

In Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988), we established that there are two basic rules governing the law of joinder of offenses in charging instruments:

(1) the State may allege more than one offense in a single charging instrument if the offenses constitute the repeated commission of the same property offense under Title 7 of the Penal Code; and (2) the State may not allege more than one non-property offense in a single charging instrument regardless of the number of the transactions involved.

Fortune, 745 S.W.2d at 366. See also Holcomb v. State, 745 S.W.2d 903, 905 (Tex.Cr.App.1988).

The first rule originated in Art. 21.24, V.A.C.C.P., which states:

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.

Criminal episode is defined in V.T.C.A., Penal Code, Sec. 3.01 ⁴ as "the repeated commission of any one offense defined in Title 7 of the code (Offenses Against Property)." Thus, these statutes permit the State to allege the repeated commission of the same property offense in a single charging instrument. Fortune, 745 S.W.2d at 366-367.

The Penal Code further states that "a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode." V.T.C.A., Penal Code Sec. 3.02(a). Again, "same criminal episode" refers to the repeated commission of any one property offense defined in Title 7 of the Penal Code. Sec. 3.01, supra. However, Section 3.04 of the Penal Code provides:

Whenever two or more [property] offenses have been consolidated or joined for trial under Section 3.02 of this code, the defendant shall have a right to severance of the offenses.

V.T.C.A., Penal Code, Sec. 3.04(a).

Thus, the first rule espoused in Fortune can be expanded as follows: a defendant charged with multiple property offenses in separate counts within a single indictment may be tried and convicted for each count in a single trial; however, he may timely request a severance so that he is tried for each count in a separate trial. Furthermore, we have held that if such a request is timely, the defendant's right to a severance is absolute, and severance is mandatory. Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.1976), reh'g denied; Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977).

With regard to second rule in Fortune, we went on to say:

The second rule comes from a narrow reading of Art. 21.24, supra, and Penal Code, Sec. 3.01, supra. These statutes have been interpreted as permitting the joinder of more than one offense in a charging instrument only when it is the repeated commission of the same property offense. [Citation omitted.] This necessarily means that a single charging instrument may not:

1) allege more than one non-property offense;

2) allege statutorily different property offenses, or;

3) allege one property and one non-property offense.

* * * * * *

When the State violates the misjoinder rule by alleging different offenses in the same indictment, the defendant has three options. First, he may object to the charging instrument on the ground that the State has misjoined offenses. The trial court should then grant the motion to quash, or may, instead, force the State to elect the offense upon which it will proceed. Smith v. State, 64 Tex.Cr.R. 454, 142 S.W. 1173 (1912); Blackwell v. State, 51 Tex.Cr.R. 24, 100 S.W. 774 (1907). Another option is to forego the motion to quash and file a motion requesting that the State be made to elect the count upon which it will proceed. The trial court should grant the motion if the State has misjoined the offenses. Crosslin v. State, 90 Tex.Cr.R. 467, 235 S.W. 905 (1921). The State must make the election by the end of the State's case and before the defense begins to present evidence. Crosslin, supra; Smith, supra; Blackwell, supra. The third option is to make no motion to quash or objection and urge trial error on appeal.

Fortune, 745 S.W.2d at 367-368 (emphasis original). See also Ex parte Siller, 686 S.W.2d 617, 621 (Tex.Cr.App.1985) (Teague, J. concurring).

With these distinctions in mind, we now address the correctness of the court of appeals' holding with regard to the severance issue. In the present case, appellant was charged with two counts of aggravated robbery which is, by statute, a property crime under Title 7. See V.T.C.A., Penal Code Sec. 29.03...