Ernest Derrail Horton v. State ( 2006 )

Opinion filed June 22, 2006

Opinion filed June 22, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00317-CR

                                                    __________

                              ERNEST DERRAIL HORTON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 104th District Court

                                                          Taylor County, Texas

                                                 Trial Court Cause No. 15,151-B

                                                                   O P I N I O N

The jury convicted Ernest Derrail Horton of possession of cocaine with the intent to deliver, and the trial court assessed his punishment at confinement for fifteen years.  Appellant was indicted in a multi-count indictment, and two judgments were inadvertently entered.  We vacate one judgment and affirm the other.

The grand jury returned a two-count indictment.  The second count alleged that appellant committed the offense of possession of cocaine on April 27, 2004.  The first alleged that, on April 27, 2004,  appellant committed the offense of possession of cocaine with the intend to deliver. It is undisputed that each offense involved the same facts.  The jury convicted appellant of possession with the intent to deliver.  However, judgments were entered convicting appellant of both possession and possession with the intent to deliver.

In his sole issue on appeal, appellant contends that the judgment convicting him of possession should be vacated.  Both the State and the trial court agree.  We also agree.  The issue is sustained.

The June 16, 2005, judgment convicting appellant of possession of cocaine and sentencing him to confinement for ten years is vacated.  The June 16, 2005, judgment convicting appellant of possession of cocaine with the intent to deliver is affirmed.

PER CURIAM

June 22, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.