Ex parte Easley, 45903
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Citation | 490 S.W.2d 570 |
| Docket Number | No. 45903,45903 |
| Parties | Ex parte Billy Mack EASLEY. |
| Decision Date | 21 February 1972 |
Page 570
John Deaver, II, Memphis, for appellant.
Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
ONION, Presiding Judge.
This post conviction habeas corpus proceeding was brought under the provisions of Article 11.07, Vernon's Ann.C.C.P. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).
In his petition first filed in the convicting court, he alleged that he was charged by a void indictment; further, he was
Page 571
charged in the same indictment in separate counts with the offense of incest being charged in the first count and with the offense of rape being charged in the second, and he was improperly convicted on the separate counts in a single indictment.The present judge of the 100th Judicial District, without an evidentiary hearing, entered an order finding that the indictment involved was valid, but that the 'sentence of the Court on the second count of the indictment was void.' Relief was, however, denied on the basis that 'sentence on the conviction on count No. 1 of the indictment is a valid sentence, and petitioner has not shown in his application that he has served out this sentence.'
A clerk's transcript was forwarded to this court which has now been supplemented by a certified transcription of the court reporter's notes of the appellant's trial on his pleas of guilty to both counts of the indictment on March 12, 1970.
Petitioner's initial claim is that the indictment is void in view of the provisions of Article 21.24, Vernon's Ann.C.C.P. This court has, on a number of occasions, held that an indictment may contain as many counts charging the same transaction as is thought necessary to meet the proof as it transpires and prevent a variance without violating Article 21.24, supra. Rose v. State, 427 S.W.2d 609 (Tex.Cr.App.1968); Steambarge v. State, 440 S.W.2d 68 (Tex.Cr.App.1968); Hughes v. State, 455 S.W.2d 303 (Tex.Cr.App.1970). See also Vannerson v. State, 408 S.W.2d 228 (Tex.Cr.App.1966).
And, it has long been held that incest and rape, based upon the same transaction, may be alleged in different counts of the same indictment so as to prevent a variance upon the trial. 4 Branch's Ann.P.C., 2d Ed., § 1937, p. 256.
The indictment is valid.
It is likewise well established that multiple sentences may not be obtained on separate counts in the same indictment....
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