Fortune v. State, 09-84-175-CR

• Decision Date: 13 November 1985
• Docket Number: No. 09-84-175-CR,09-84-175-CR
• Parties: Harvey C. FORTUNE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 706

699 S.W.2d 706

Harvey C. FORTUNE, Appellant, v. The STATE of Texas, Appellee.

No. 09-84-175-CR.

Court of Appeals of Texas,

Beaumont.

Nov. 13, 1985.

William E. Hall, Jr., Conroe, for appellant.

Mary Ann Turner, Asst. Dist. Atty., Conroe, for appellee.

OPINION

BROOKSHIRE, Justice.

In a single indictment, the Appellant was charged with burglary of a habitation with the intent to commit the felony offense of sexual assault and, by a separate count, the Appellant was charged with aggravated sexual assault against one S.B., the victim, without her consent and during said aggravated sexual assault, using and exhibiting a deadly weapon, a knife which, in its manner of use and intended use, was capable of causing death or serious bodily injury.

The first paragraph pleaded that the burglary of the habitation was without the effective consent of Marvin Beard, the owner. The last allegation of the indictment was an enhancement paragraph alleging that the Appellant, on May 28, 1979, in the First District Court of Sabine County, was convicted of a felony, which conviction became final. The felony in Sabine County was for sexual abuse.

The Appellant, without objection, motion to sever, or motion to require the State to elect, proceeded with the guilt or innocence phase of the bifurcated trial. The jury found, in a separate, general verdict, the Appellant guilty of the felony offense of burglary of a habitation without the effective consent of Marvin Beard, the owner, being a victim. This was an offense against property and an offense against one male victim, Marvin Beard.

The jury in a second, separate, general verdict found that the Appellant was guilty of the offense of aggravated sexual assault. This separate and distinct offense was not against property. This offense involved the use of a deadly weapon and was committed against S.B., a female victim. In greater detail, the second count of the indictment alleged that the Appellant did then and there intentionally and knowingly cause penetration of the mouth of S.B., the victim, a person not the spouse of the defendant (Appellant), with the sexual organ of the defendant (Appellant), without the consent of the victim, and used a deadly weapon, a knife.

By a special finding, the jury found that the Appellant used a deadly weapon, a knife, in the course and commission of aggravated sexual assault.

Under this record, we find that these are separate, distinct offenses against two separate, distinct victims.

The Appellant filed a pleading entitled "Election As To Punishment" which, in substance, evidenced his election to have the jury assess his punishment during the second part of the trial. The Appellant did not, at the guilt or innocence stage, make any request or motion that the State should be required to elect upon which count or transaction it would prosecute. McKenzie v. State, 32 Tex.Cr.R. 568, 25 S.W. 426 (1894). In view of the wording of his pleading entitled "Election As To Punishment", he waived the right to require the State to make an election upon which count or which transaction it would prosecute. Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985) (Opinion on Appellant's Petition for Discretionary Review).

The Appellant objected to the multiple punishment sentences. This objection was made just before the punishment phase. The jury assessed 15 years for the burglary of the habitation. In addition thereto, the jury assessed 30 years confinement for the offense of aggravated sexual assault. The 15 year sentence and the 30 year sentence were ordered to be cumulative and to run consecutively by the trial judge. The trial judge specifically denied the Appellant's request to run the sentences concurrently.

TEX. PENAL CODE ANN. sec. 22.021 (Vernon Supp.1985), creates and mandates a separate and distinct offense entitled "Aggravated Sexual Assault". The aggravated sexual assault is certainly, under this record, a separate and distinct offense from burglary of a habitation.

The State, in its brief, wrongly concedes that: "the offenses alleged in the indictment constituted part of the same 'transaction' as that term is used in Siller and Drake." The State went on to say: "[t]hus, the State must also concede, albeit reluctantly, that the holding in Siller mandates reversal as to one of the two sentences imposed."

We respectfully request the Court of Criminal Appeals to reconsider Ex Parte Siller, 686 S.W.2d 617 (Tex.Crim.App.1985). A careful reading of Drake v. State, supra, motivates us to urge, respectfully, upon the high court to hold that a correct reading of TEX. CODE CRIM.PROC.ANN. art. 37.07 would require us and them to affirm both judgments and both sentences below whereby this Appellant would serve a 15 year sentence and the 30 year sentence consecutively.

Article 37.07, sec. 1(b) provides, in substance, that if the plea is not guilty the jury must find that the defendant is either guilty or not guilty and they shall assess the punishment in all cases. Even more cogent and compelling is the language of art. 37.07 sec. 1(c), providing, in substance, if the charging instrument contains more than one count or if two or more offenses are consolidated for trial pursuant to Chapter 3 of the Penal Code, the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them. The word or is paramountly important to the construction of art. 37.07, sec. 1(c). Here, we perceive, or is used as a co-ordinate conjunctive connecting two phrases or two clauses of equal rank.

Hence, a proper reading would be: "If the charging instrument contains more than one count, the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them." Obviously, the first clause of art. 37.07, sec. 1(c) is not dependent upon or modified or qualified by the second clause dealing with two or more offenses that are consolidated for trial pursuant to Chapter 3 of the Penal Code. There was no consolidation for trial in our case,...