Washington v. State

CLINTON, Judge,

concurring.

In my view Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is wholly inapposite here. Its “test” is an aid to the judiciary in determining whether Congress intended that the same act or transaction constitute separate offenses for purposes of imposing punishment for both offenses. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).

Such approaches to solving jeopardy problems do not lead to a resolution of a joinder issue; the latter is a pleading matter, rarely a problem under federal law. See generally Fed.R.Cr.Pro. 8(a), and Wright, Federal Practice and Procedure: Criminal 2d § 143 (2d ed. 1982).

Nor is resort to decisions under the late Texas Speedy Trial Act all that helpful, for special considerations informed the legislative formulation of “same offense” arising out of one transaction.

Assuming, as the majority must, that legislative limitation of Article 21.24 to property offenses effectively revived the statics quo ante with respect to joining other offenses, see Drake v. State, 686 S.W.2d 935, at 949 (Tex.Cr.App.1985), under common law rules melded into former statutes, there is no misjoinder here. Ibid. Thus there is no ground for objection.

With those observations and reservations about effectiveness of counsel, I join the judgment of the Court.