Fortune v. State’s Empirical Analysis

Citation profile

37 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 37 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The second rule comes from a narrow reading of Art. 21.24, supra, and Penal Code, Sec. 3.01, supra. These statutes have been interpreted as permitting the joinder of more than one offense in a charging instrument only when it is the repeated commission of the same property offense. [Citation omitted.] This necessarily means that a single charging instrument may not: 1) allege more than one non-property offense; 2) allege statutorily different property offenses, or; 3) allege one property and one non-property offense. * * * * * * When the State violates the misjoinder rule by alleging different offenses in the same indictment, the defendant has three options. First, he may object to the charging instrument on the ground that the State has misjoined offenses. The trial court should then grant the motion to quash, or may, instead, force the State to elect the offense upon which it will proceed. Smith v. State, 64 Tex.Cr.R. 454 , 142 S.W. 1173 (1912); Blackwell v. State, 51 Tex.Cr.R. 24 , 100 S.W. 774 (1907). Another option is to forego the motion to quash and file a motion requesting that the State be made to elect the count upon which it will proceed. The trial court should grant the motion if the State has misjoined the offenses. Crosslin v. State, 90 Tex.Cr.R. 467 , 235 S.W. 905 (1921). The State must make the election by the end of the State’s case and before the defense begins to present evidence. Crosslin, supra; Smith, supra; Blackwell, supra. The third option is to make ”

   2 later decisions quote this exact passage
   e.g. Coleman v. State · Mallett v. State

2. “In its petition, the State contends, and rightfully so, that the two preceding opinions are irreconcilable, and that the bench and bar of this State deserve a clarification. We will now take the opportunity to do so. The basic issue here is not whether the State may obtain multiple convictions from one indictment. That issue has been clearly decided: multiple convictions may not be had from a single indictment, regardless of whether the offenses arose out of the same or different transactions. Rather, the real issue here is whether the defendant must object to misjoinder in order to preserve the issue on appeal. As observed by the State, the opinions in Siller and Drake, supra, do not provide a principled basis for the differences in their outcomes.”

   2 later decisions quote this exact passage
   e.g. Honc v. State · Ex Parte Fortune

3. “(1) the State may allege more than one offense in a single charging instrument if the offenses constitute the repeated commission of the same property offense under Title 7 of the Penal Code. See TEX.CODE CRIM.PROC.ANN. art. 21.-24. 6 (2) the State may not allege more than one non-property offense in a single charging instrument regardless of the number of the transactions involved. See TEX.CODE CRIM.PROC.ANN. art. 21.24 and TEX.PENAL CODE ANN. § 3.01. 7”

   2 later decisions quote this exact passage
   e.g. Saucedo v. State · Coleman v. State