¶1dissenting.
¶2I respectfully dissent. To reach their result, the majority views the appellant as having been charged with one offense. They write:
Here the offense appellant was alleged to have committed was unlawful appropriation of money from the four named individuals. The question was how had he appropriated the money: by theft or by misapplication as a fiduciary? In this case, it was appropriate to allege in multiple paragraphs the different ways the offense was committed in order to prevent a fatal variance.
¶3*505The offenses of theft and misapplication of fiduciary property are two separate and distinct offenses under Title Seven of the Penal Code. See id. at § 81.03 (theft) and § 32.45 (misapplication of fiduciary property).
¶4Tex.Code Crim.Proc.Ann. art. 21.24(a) (Vernon Supp.1986), allows the state to join two offenses in a single charging instrument if they arise out of the same criminal episode. According to Chapter Three of the Texas Penal Code, criminal episode means the repeated commission of any one offense defined in Title Seven of the code. See Tex.Pen.Code Ann. § 3.01 (Vernon 1974).
¶5Therefore, the two offenses both defined in Title Seven, cannot be joined in a single charging instrument. See e.g., Jordan v. State, 552 S.W.2d 478, 479 (Tex.Crim.App. 1977) (Burglary and theft); Keimig v. State, 669 S.W.2d 121, 124 (Tex.App.— Houston [14th Dist.] 1983, pet. ref’d) (auto theft and burglary).
¶6The statement, quoted above, that appellant was charged with one offense reveals the flaw in the majority’s position. “Here the offense appellant was alleged to have committed was unlawful appropriation of money_” The offense of theft is defined in Tex.Pen.Code Ann. § 31.03(a) (Vernon Supp.1986): A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. The offense of misapplication of fiduciary property is defined in Tex.Pen. Code Ann. § 32.45(b) (Vernon 1974): A person commits an offense if he intentionally, knowingly or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.
¶7According to the majority, appellant was charged, in effect, with theft and the state alleged that he committed that offense by theft or misapplication of fiduciary property. I believe this was improper. Theft and misapplication of fiduciary property are different offenses. The elements of the offenses are different. Furthermore, the two offenses fall under different chapters of the penal code: theft offenses are found in chapter thirty-one and misapplication of fiduciary property is found in chapter 32, Fraud, subchapter D, Other Deceptive Practices. It was improper for the state to allege both offenses in a single charging instrument.
¶8The question then becomes whether the trial court’s error mandates reversal. This issue was raised by the court of appeals in Sifford v. State, 704 S.W.2d 571, 573 (Tex.App.—Corpus Christi 1986, no pet.) and by the Court of Criminal Appeals in Callins v. State, No. 69,023 (Tex.Crim.App. July 2, 1986) (not yet reported). In Sifford, the state improperly joined in one indictment, robbery and aggravated sexual assault. See Sifford v. State, 704 S.W.2d at 575. Sif-ford’s motion to quash the indictment was overruled and the court of appeals found the error was reversible. See Sifford v. State at 573.
[H]arm ... resulted from (1) the reading of the formal charging of both crimes before the jury which required [appellant] to plead not guilty to both offenses; (2) the voir dire; and (3) the state’s opening statement_ The jury was ... allowed to consider that the appellant was on trial for two separate felony offenses, each arising from a separate penal statute, rather than merely the one that the state elected to pursue to verdict.
¶9Sifford v. State at 573.
¶10The court in Siffordfurther stated that to allow the state’s violation of art. 21.24(a) to be cured by the state’s election to submit only one offense to the jury would sanction the state’s disregard of art. 21.24(a) and render that article meaningless.
¶11This last observation by the court of appeals indicates an intention to find reversible error whenever an indictment which improperly joins multiple offenses is allowed to stand over a defendant’s objection. The Court of Criminal Appeals in Callins v. State, No. 69,023 (Tex.Crim.App. July 2, 1986), reached the same result as that in Sifford. In Callins, the state im*506properly joined one count of capital murder with two counts of aggravated robbery in one indictment. See id.In reversing the conviction, the court held:
If a trial court fails altogether to require the State to cure its misjoinder, whether by denying a motion to quash the indictment or by denying a motion to force an election, an appellate court must reverse the conviction. To do otherwise would allow the State to disregard the implicit pleading restrictions of Article 21.24, supra and thereby obtain multiple convictions from a single indictment in the face of a defendant’s protestations. Allowing such a result would thereby do violence to [the defendant’s] rights to an election. [Citation]
¶13Based on the holdings in Siffordand Callins, I would find that the misjoinder in appellant’s indictment was reversible error.