Parks v. State

Decision Date06 July 1977
Docket NumberNo. 55085.,55085.
Citation553 S.W.2d 114
PartiesHerbert Lavert PARKS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Terry G. Collins, Houston (Court-appointed), for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appellant waived trial by jury and entered a plea of guilty before the court to two counts of aggravated robbery. Punishment was assessed at imprisonment for fifteen years and one day on each count.

Appellant's court-appointed counsel has filed a brief in which he states that the appeal is wholly frivolous and without merit. Although the brief does not contain any arguable grounds of error, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), it does contain an exhaustive and professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A copy of counsel's brief, "... a copy of the Record, including the judgment and sentence, all exhibits, as well as the transcript of the proceedings," have been furnished appellant and appellant has been advised that he may file a pro se brief. No pro se brief has been filed.

We have examined the record and find no merit in the appeal except for the fact that only one sentence was pronounced in the case while the indictment contained two counts of aggravated robbery.

It appears that the indictment was drafted under the provisions of V.T.C.A., Penal Code, Secs. 3.01 and 3.02, and Art. 21.24, V.A.C.C.P., as amended.

Article 21.24, supra, provides in part:

"(a) 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."

Section 3.01, supra, provides:

"In this Chapter, `criminal episode' means the repeated commission of any offense defined in Title 7 of this code (Offenses Against Property)."

Section 3.02, supra, provides in part:

"(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode."

The offense of aggravated robbery is provided for in V.T.C.A., Penal Code, Sec. 29.03, which is found in Title 7 of that code.

An examination of the record reveals that only one sentence was pronounced in this case. That sentence, which recites that appellant had "been adjudged to be guilty of aggravated robbery, as charged in two counts of the indictment" and that punishment had been assessed at fifteen years and one day, then orders appellant confined for a term of not less than five years nor more than fifteen years and one day.

V.T.C.A., Penal Code, Sec. 3.03, provides:

"When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently."

Unlike the situation found in White v. State, Tex.Cr.App., 543 S.W.2d 130, we are unable to determine upon which count of the indictment the single sentence was pronounced. In instances where two convictions have been based on the same evidence and under the doctrine of carving one of the two offenses is invalid, we have held...

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9 cases
  • Murray v. State
    • United States
    • Texas Court of Appeals
    • September 21, 2011
    ...the one sentence assessed for more than one conviction applies to the first count of the indictment. Id.; see also Parks v. State, 553 S.W.2d 114, 116 (Tex.Crim.App.1977); Harmon v. State, 889 S.W.2d 521, 523 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Because this reasoning results i......
  • Robinson v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 13, 1977
    ...in the instant case, we hold that the judgment and sentence are applicable to the first count of the indictment. See Parks v. State, 553 S.W.2d 114 (Tex.Cr.App.1977). Since, however, there is no sentence applicable to the second count as required by said § 3.03, the appeal relative thereto ......
  • Murray v. The State Of Tex.
    • United States
    • Texas Court of Appeals
    • December 6, 2010
    ...the one sentence assessed for more than one conviction applies to the first count of the indictment. Id.; see also Parks v. State, 553 S.W.2d 114, 116 (Tex. Crim. App. 1977); Harmon v. State, 889 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1994, pet. refd). Because this reasoning result......
  • Thompson v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 11, 2003
    ...procedure when appeal is dismissed because record fails to show sentence). 19. White, 543 S.W.2d at 132; see also Parks v. State, 553 S.W.2d 114, 115 (Tex.Crim.App. 1977) (following White; defendant convicted of two counts of robbery, but sentenced only on one count; judgment on first count......
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