Durham v. State

¶1concurring.

¶2The single instrument purporting to be the formal sentences pronouncing judgments as to all counts is set out in part in the majority opinion and need not be repeated here. It is by no means a model to be emulated, but it does reflect the appellant was found guilty to all three counts, and unlike the instruments in Parks v. State, 553 S.W.2d 114 (Tex.Cr.App.1977), and in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), it assesses punishment “as to each charge.” Cf. White v. State, 543 S.W.2d 130 (Tex.Cr.App.1976). It does not, however, apply the indeterminate sentence law to all counts, but the sentences in the instrument can be reformed by this court to apply the indeterminate sentence law. See Holden v. State, 98 Tex.Cr.R. 592, 267 S.W. 275 (1924). Why the majority chooses to ignore this deficiency and thus encourages the use of such instrument is not understandable. Parksand Whitemade clear that a judgment and a sentence should be entered as to each count of the indictment charged under the criminal episode doctrine. See Article 21.24(a), Vernon’s Ann.C.C.P., and V.T.C.A., Penal Code, §§ 3.01, 3.02 and 3.03. This is by far the better and safer practice and it avoids many problems. I would agree, however, that a single instrument, as in the instant case, may contain or incorporate separate sentences in order to satisfy V.T.C.A., Penal Code, § 3.02, but careful draftsmanship of the form by legally trained personnel will be required.1

¶3I observe that all the cases on this point to date have been from Harris County and most have involved visiting judges. The errors appear to be of a clerical nature, desirous of a “shortcut.” This court with its heavy case load should not be required to write repeatedly upon this matter. Surely some local concern by the local trial judges, the district attorney and most importantly, the district clerk, could correct this problem.

¶4I concur in the result reached, but would reform the instrument purporting to be the sentences to apply to the indeterminate sentence law.