OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
In the criminal law jurisprudence of this State a first principle is that in every criminal action tried before a jury the verdict must be “general,” and if the plea is not guilty the jury must find that the accused is either guilty or not guilty; regardless of allegations in a charging instrument, a consequence of a general verdict of “guilty” is a judgment of conviction of but one offense and imposition of but one sentence. Today, we decide whether that principle and its consequence remain valid.
In a three count indictment, appellant was charged in paragraph I of count I with the attempted capital murder of Police Officer Benton Thurman; paragraph II of count I alleged a deadly assault upon Officer Thurman; count II alleged the attempted capital murder of Officer Jimmy Stone; count III, paragraphs I and II, alleged the offenses of burglary of a building and felony theft. Following these counts, the indictment alleged that the offenses were all separate offenses and were offenses which were committed by appellant “as part of the same criminal episode or transaction.” 1
All the charges were tried together in one jury trial. Prior to the submission of the case to the jury, the State abandoned all counts and charges alleged in the indictment except the charges of attempted capital murder against the two officers. The jury found appellant guilty of both offenses and assessed punishment at confine[937]*937ment in the Texas Department of Corrections for a period of 25 years for each offense. The trial judge ordered that the sentences be cumulated.
On December 22, 1983, in its Cause No. 10-83-057-CR, the Waco Court of Appeals, with an unpublished opinion, affirmed the judgment of two convictions. We granted appellant’s petition for discretionary review to determine whether the court of appeals correctly overruled appellant’s complaint that the trial court erred by convicting him of both attempted capital murder offenses since both were alleged in a single indictment.
Appellant asserts that it was error for the trial court to permit multiple, nonpro-perty offense convictions arising from a single indictment and that such error is fundamental. The court of appeals held that since appellant did not move to quash the indictment, the error was waived, citing Munoz v. State, 169 Tex.Cr.R. 181, 333 S.W.2d 148 (1960); Hill v. State, 169 Tex.Cr.R. 104, 332 S.W.2d 579 (1960); Hood v. State, 169 Tex.Cr.R. 422, 334 S.W.2d 302 (1960). In its brief, the State concedes there are cases holding that obtaining two such convictions from one indictment is improper, but argues that the error is not fundamental in light of this Court’s abandoning the carving doctrine in Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1980) (Opinion on State’s Motion for Rehearing).
There is much more involved in this cause than those competing positions, however. From the format and content of the single indictment one may deduce that an objective of the State, through its local district attorney, is to achieve judicial approval of its prosecuting, convicting and punishing an accused for two or more distinctly proscribed offenses in one trial on a single indictment. See also Siller v. State, 686 S.W.2d 617 (Tex.Cr.App., delivered this day). At the threshold we see problems with one contention made by the State.
First is a matter of terminology. Article 27.05, V.A.C.C.P., uses the term “criminal episode,” but it is not defined in the procedural code. Outside of V.T.C.A. Penal Code, Chapter 3, the term is used sparingly in the penal code. See, e.g., § 22.021(a)(5): sexual assault becomes aggravated when the person uses or exhibits a deadly weapon “in the course of the same criminal episode.” It is defined only in § 3.01 — “the repeated commission of any one offense defined in Chapter 7 of this code (Offenses Against Property)” — and that definition is only for purposes of Chapter 3. See Boutwell v. State, 653 S.W.2d 108, 110-111, n. 1 (Tex.App. — Austin 1983), review granted on other grounds and pending. Accordingly, unless Chapter 3 is implicated, practitioners and courts would be well advised to avoid loosely using the term “criminal episode.”
Secondly, no one has mentioned that the court of appeals found:
“The offenses [of attempted capital murder] were distinct assaults against two different persons, sufficiently separated by time and place so that prosecution for both was not in violation of State and Federal constitutional double jeopardy provisions. Ex parte McWilliams [634 S.W.2d 815, 823 (Tex.Cr.App.1982)]; Meeks v. State 653 S.W.2d 6, 11 (fn. 4) (Tex.Cr.App.1983).”
Its conclusion about jeopardy aside, the factual findings made by the court demonstrate, notwithstanding a contrary assertion by the pleader in this indictment, that the two counts respectively alleging attempted capital murder of Officer Thurman and attempted capital murder of Officer Stone arose out of different “transactions.” Which brings us to the late carving doctrine, and the third problem.
When the Supreme Court of Texas possessed jurisdiction over criminal cases, it expressly recognized the doctrine. In Jackson v. The State, 43 Tex. 421 (1875), the Supreme Court noted in passing, “It is a general rule that a party may in a criminal proceeding be held to answer for any offense, great or small, which can legally be carved out of the transaction,” and cited 1 Bishop in Criminal Law, 536. Then in Wilson v. The State, 45 Tex. 76 (1876) [938]*938the Supreme Court found that the great weight of American authorities supported the conclusion it was about to reach. Included among cited authorities is an Indiana decision, Jackson v. State, 14 Ind. 327, from which the Supreme Court extracted the following:
“The State cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based on the whole or part of the crime.”
Wilson, supra, at 83. The conclusion reached is:
“[W]hen the transaction is the same [it] is but one offense against the State, and ... the accused cannot be convicted on separate indictments charging different parts of one transaction as a distinct offense. A conviction on one of the indictments bars prosecution on the other.”
Ibid.
Contemporaneously, then Presiding Judge White wrote for the former court of appeals what seems to be the first shorthand rendition of the carving doctrine in our criminal law jurisprudence, viz:
“The prosecutor had a right to carve as large an offense out of this transaction as he could, but yet must cut only once.”
Quitzow v. The State, 1 Tex.App. 47, 53-54 (Ct.App.1876). The Court relied on and discussed Wilson v. The State, supra, and several other authorities.
In Simco v. The State, 9 Tex.App. 338 (Ct.App.1880), Presiding Judge White opined for the Court why once an accused who stole simultaneously three horses, each belonging to a different owner, and had been convicted for theft of any one of them, could not be legally convicted for theft of the other two, viz:
“Because the transaction — the taking of the three horses at the same time— would constitute but one offense in law (Wilson v. The State, 45 Texas 76); and the plea [of former conviction] would be good upon the strength of, and by virtue of another rule, well settled in criminal practice, which allows the prosecutor to carve as large an offense out of a single transaction as he can, yet he must cut only once. Quitzow v. The State, 1 Texas Ct.App. 47. Here is where the doctrine of carving would come in and support the plea. [References to Wharton on Criminal Law and authorities cited by him, omitted.]”
Simco, supra, at 349. To the same effect is Wright v. The State, 17 Tex.App. 152 (Ct.App.1884), in which Presiding Judge White posited a similar taking of cattle of two different owners at the same time and a prior conviction pertaining to one owner, and explained there could not be second trial for taking cattle of the other owner—
“because the transaction being but one, the prosecution could carve but once, and having once carved and convicted it could not claim another and second conviction against the same party for the single offense. It is the doctrine of carving ... which makes this distinction between the plea of autrefois acquit and autrefois convict where several ostensible crimes are covered by a single transaction.”
Wright, supra, at 159. See also Hirshfield v. The State, 11 Tex.App. 207, 215 (Ct.App.1881).
Essential to the carving doctrine, then, is that there be just one transaction. In the instant cause the court of appeals correctly found there are two transactions. See Ashton v. State, 31 Tex.Cr.R. 482, 21 S.W. 48 (1893); Lillie v. State, 79 Tex.Cr.R. 615, 187 S.W. 482 (1916). Since the carving doctrine was never applicable to offenses arising out of different transactions, its passing cannot affect the State’s prosecuting, convicting and punishing an accused in accordance with other rules.2
[939]*939However, assuming that there are not two transactions but only one, the State asserts that “in the absence of the ‘carving doctrine’ a defendant may be indicted separately and tried for each offense committed in the same ... transaction,” and asks, “Why then, absent objection by the defense, should it not be permissible to obtain the same object with one piece of paper instead of two?”
The answer lies in another distinctly different set of rules, independent of the carving doctrine, governing joinder of offenses; it implicates statutory provisions and judicial declarations pertaining to charging instruments, joinder of offenses, consolidation for trial and allowable punishment. And most profound questions are raised by the 1973 legislative enactment of V.T.C.A. Penal Code, Chapter 3, and related conforming amendments to procedural rules.
The common law and Texas statutes from Old Code art. 626 through all its successors to Article 37.07, § 1(a) provided that the verdict in every criminal action “shall be general.” That meant that “where there are several counts in an indictment, on the bringing in by the jury of a general verdict the court will apply the verdict to any one of the several counts and order judgment and sentence accordingly.” Southern v. State, 34 Tex.Cr.R. 144, 29 S.W. 780, 781 (1895). Arnett v. State, 105 Tex.Cr.R. 132, 286 S.W. 989 (1926), collects many authorities for the proposition that “if there be two counts and both are submitted and a general verdict is returned the judgment [on one count] will be upheld.” And if one count is “good” and supported by sufficient evidence and the other is “bad” or not supported, “a general verdict is also proper, and would be assigned to the good count,” Boren v. The State, 23 Tex.App. 28, 4 S.W. 463, 466 (1887). With that basic principle in mind, we turn to matters of pleading counts in a charging instrument.
Before the new penal code with its conforming amendments to the code of criminal procedure became effective, one significant statutory rule for pleading was that provided by the 1965 version of Article 21.24, V.A.C.C.P., viz:
“An indictment, information or complaint may contain as many counts charging the same offense as the attorney who prepares it, acting in good faith, may think necessary to insert, but may not charge more than one offense. An indictment or information shall be sufficient if any one of its counts be sufficient.”
Facially the provisions seem clear and unambiguous, but as Presiding Judge Onion observed in his Special Commentary to former Article 21.24, the intended meaning of “offense” was subject to interpretation.
A report of the results of our research into that matter consumes so many pages that it should not be published; however, it is appended to this opinion so that the parties and courts involved in this cause may be informed. Suffice to say that as things stood in 1973, common law rules of allowable pleading of matters in several counts of a single indictment, and the permissible consequences of doing so, had been melded with predecessor articles before the 1965 changes in Article 21.24. Vannerson v. State, 408 S.W.2d 228 (Tex.Cr.App.1966) had found that the 1965 changes did not alter prior construction of precursors, and its followings never deviated from the essence of Vannerson. The problem posed by Presiding Judge Onion had been solved: in the clause “but may not charge more than one offense,” “of[940]*940fense” meant “criminal transaction.” Within that framework there could be multiple prosecutions, but only one conviction for just one offense with concomitant punishment.
A radical new concept of “multiple prosecutions” was proposed by the State Bar Committee on Revision of the Penal Code. See Chapter 3, “Texas Penal Code, A Proposed Revision” (Final Draft, October 1970) (“Blue Book”) 25-36; see also proposed conforming amendments to, e.g., Articles 3.04, 21.24, 27.05 and 37.07, V.A.C.C.P., Blue Book 365-367. But ultimately the proposal was accepted just for prosecution of offenses against property only pursuant to V.T.C.A. Penal Code, Chapter 3. Thus, in pertinent part § 3.02 provides:
“(a) A defendant may be prosecuted in a single criminal action for all offenses arising out the same criminal episode.[3]
(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the State shall file written notice of the action ...”
Section 3.03 acknowledges that in a consolidation or joinder of prosecutions the accused may be “found guilty of more than one offense arising out of the same criminal episode” as defined in § 3.01. Then it directs that sentence for each such offense be pronounced, but mandates that they run concurrently.
Consistent with its original concept of “multiple prosecutions” and its broad definition of “criminal episode,” the Blue Book proposed to rewrite Article 21.24 to provide for “Joinder of Certain Offenses.” Thus, subsection (a) would have provided:
“(a) Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode.”4
Having introduced into the new Penal Code its own notion of multiple prosecutions, the Legislature naturally sought to render Article 21.24 compatible with those new provisions. As revised under the catchline “Joinder of Certain Offenses,” Article 21.24 permits:
“(a) Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.
(b) A count may contain as many paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.
(c) A count is sufficient if any one of its paragraphs is sufficient. An indictment, information, or complaint is sufficient if any one of its counts is sufficient.”
What that simple addition to subsection (a)- surely means is that the Legislature intended to recast the provisions of former Article 21.24 by eradicating judicially applied gloss of “criminal transaction” over “offense” and replacing it with a new and limited definition of “criminal episode” in order to implement its own notion of consolidation and joinder of property offenses arising out of the same criminal episode as defined in § 3.01 of the penal code. Section 3.02(a) and (b), respectively, contemplate that an accused may be prosecuted “in a single criminal action for all [such] offenses” either through a single charging instrument alleging them, as permitted by revised Article 21.24(a), or through consoli[941]*941dating for trial “more than one charging instrument.” See Practice Commentary-following § 3.02.
According to Shepard’s Texas Citations, the first case in which present Article 21.24 was noticed is Ex parte Gnesoulis, 525 S.W.2d 205 (Tex.Civ.App. — Houston [14th] 1975). Since it arose in the context of a contempt matter on the civil side, the prece-dental value is minimal; nevertheless, the finding is illuminating, viz:
“At the time of the [decision in Ex parte Genecov, 143 Tex. 476, [186 S.W.2d 225 (1945)], in misdemeanor cases, separate offenses could be charged in separate counts and the whole matter disposed of in one trial. However, that rule was changed by the Texas Legislature in 1973 by the amendment of Article 21.24. It is now necessary to charge separate offenses in separate informations.”
On the criminal side at the outset, recast Article 21.24 first went unnoticed at the appellate level and received uneven treatment in trial courts. See Faulks v. State, 528 S.W.2d 607 (Tex.Cr.App.1975);5 White v. State, 543 S.W.2d 130 (Tex.Cr.App.1976), Jordan v. State, 552 S.W.2d 478 (Tex.Cr.App.1977); and Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).6
On the other hand, in a case of first impression, Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.1976), the Court found a motion to quash an indictment containing four substantive counts of forgery was without merit because “Article 21.24 provides that a single indictment may charge two or more offenses, each in a separate count, if the offenses arise out of the same ‘criminal episode’ [as defined in Chapter 3, V.T.C.A., Penal Code],” and “the repeated commission of forgery as alleged in the substantive counts permitted the State to charge all four offenses in a single indictment,” id., at 803. To the same effect is Robinson v. State, 553 S.W.2d 371, 371-372 (Tex.Cr.App.1977), though the Court must have merely assumed that two counts of aggravated robbery alleged to have been committed against different persons on the same day qualify as “repeated commission of any one offense,” for it did not decide the point. Nor did a panel of the Court in Johnson v. State, 627 S.W.2d 426 (Tex.Cr.App.1982), find it necessary to determine whether offenses of aggravated robbery and robbery meet the definition of criminal episode. Id., at 427, n. 1.
Meanwhile in Garcia v. State, 574 5.W.2d 133 (Tex.Cr.App.1978), a panel of the Court routinely alluded to the old rule that allowed charging “two or more distinct felonies in different counts” in iterating that “the accused may be convicted of only one count,” but pointing out that §§ 3.01-3.03 have “abolished this rule with respect to property offenses,” id., at 134. Though the panel was considering the matter in the interest of justice, there is no indication that it examined continued propriety of joinder of offenses other than against property in light of Article 21.24. However, in Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979), a Court panel opined that a count alleging possession of marihuana and another count charging possession of a firearm by a felon were “improperly joined in the indictment since the two offenses were not violations of Title VII of the Penal Code.” Id., at 697, n. 1. Yet, confronted with a series of fifteen unlawful deliveries of controlled substances, each respectively alleged in a sepa[942]*942rate count in a single indictment, and a conviction and punishment for each, another panel of the Court gratuitously stated:
“Except for the offenses defined in Chapter 3 of the Penal Code, only one conviction can be had on an indictment even though it has more than one count.”
Santoscoy v. State, 596 S.W.2d 896, 902 (Tex.Cr.App.1980). And by quoting from the 1892 opinion of the Court in Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766 (Ct.App.1892), Santoscoy suggests a revival of earlier common law pleading practice the Court had engrafted onto former article 433 and its successors. Similarly, the majority opinion on rehearing in Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) reproduces a portion of Mr. Bishop’s dictum quoted in Boren v. The State, 23 Tex.App. 28, 4 S.W. 463 (Ct.App.1887), and cites other older cases for the proposition that under Article 21.24(b) “an indictment may and should be comprised of as many counts as are necessary to meet the contingencies of the evidence.” Id., at 162-163.7
Indeed, so far as one may determine from Shepard’s Texas Citations, the recent opinion of the Court in Meeks v. State, 653 S.W.2d 6 (Tex.Cr.App.1983), reflects the only effort by this Court to analyze Article 21.24(a) in light of its 1965 revision, the Vannerson construction and related decisions and legislative developments in 1973. See Meeks, supra, at 10-12. Some observations and comments about Meeks are in order.
First, Meeks takes no note of the fact that the 1965 revision of former article 417 added the limitation that a charging instrument “may not charge more than one offense.” While one may say that Vanner-son construed revised Article 21.24 “to prohibit charging more than one offense in a single indictment if the offense did not arise out the same transaction,” Meeks, at 10, the truth of the matter is that long ago the Court had found that prohibition in the common law and generally adhered to it. The question begging to be answered was the effect of the clause added in 1965, so the significant purport of Vannerson was and is that revised Article 21.24 did not prohibit that approved past practice of charging two or more offenses arising out of the same criminal transaction. And as already discussed in note 11 of the appendix, Vannerson seems to have erred in saying that the Legislature did not intend just such a change in the law of pleading two or more offenses in one charging instrument.
The Meeks majority, however, opines that “the new wording of Art. 21.24 does not alter the previous prohibition against alleging more than one offense in a single indictment where the offenses were not committed in the same criminal transaction,” but instead “provides an exception to the previous prohibition” for charging repeated commission of an offense against property. Without considering all the legislative history, it finds support for that interpretation in “the wording of the new statute, and the reason supporting the change in the law.”
As to “wording of the new statute,” the Meeks majority perceives that use of “may” makes the prescribed joinder merely permissive and that the statute contains no indicia that the joinder allowed is exclusive, of other joinders the law formerly approved. But the statute is necessarily permissive because §§ 3.01-3.04 preclude mandatory joinder of property offenses. Gordon v. State, 633 S.W.2d 872, 876-877 (Tex.Cr.App.1982) and Waythe v. State, 533 S.W.2d 802, 804 (Tex.Cr.App.1976). And when an existing statute construed to permit joinder of all offenses of whatever nature arising out of one transaction is replaced by one expressly permitting join-der “if the offenses arise out of the same criminal episode, as defined in Chapter 3 of [943]*943the Penal Code,” the fair and reasonable implication is that the Legislature has withdrawn the former authorization in favor of the latter. Ex parte Trahan, 591 S.W.2d 837, 842 (Tex.Cr.App.1979). That kind of legislating overrules prior statutory law to the contrary, Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 291 (1959), and is what enacting codes and conforming amendments is all about. American Indemnity Co. v. City of Austin, 112 Tex. 239, 246 S.W. 1019, 1024-1025 (1922); Robertson v. State ex rel Clement, 406 S.W.2d 90, 96 (Tex.Civ.App. — Fort Worth 1966) writ refused n.r.e.; Pacific Products, Inc. v. Great Western Plywood, Ltd., 528 S.W.2d 286, 291 (Tex.Civ.App. — Fort Worth 1975) no writ history; W.R. McCullough Life Ins. Co. v. Armstrong, 158 S.W.2d 585, 586 (Tex.Civ.App. — Fort Worth 1942) no writ history.
With respect to “the reason supporting the change in the law,” the majority in Meeks looks to Practice Commentary to § 3.01, but completely misses the main point. It is not the definition of “criminal episode” that permits “aggregation of property values involved in the repeated commission of a property offense so that felony status may be more easily alleged,” as the Meeks majority believes; that aggregation is provided for in V.T.C.A. Penal Code, §§ 31.09 and 32.03.8 Aggregation of amounts to determine the grade of what is considered a single offense is a matter entirely different from joinder of two or more offenses in a single charging instrument. What the commentary actually states is that joinder authorization under Chapter 3 “was no doubt intended to be used in conjunction with” the two aggregation provisions in Chapter 7. Thus, utilizing the latter in combination with the former, an aggregated offense of felony theft, for instance, may be joined with one or more offenses of ordinary felony theft.
Accordingly, the analysis performed by the Meeks majority is faulty in both its aspects. There is simply no reasoned basis for its finding that “the new wording of Article 21.24 V.A.C.C.P., continues to permit the State to allege more than one offense in a single indictment if the offenses were committed in the same criminal transaction ...” That wording does not remotely suggest such allowance, and almost the same concept, proposed in the Blue Book, was rejected by the Legislature. See ante, at pages 941-942.
Furthermore, when the Legislature enacted present Article 21.24 as a conforming amendment to the penal code, it impliedly repealed the 1965 revision of former article 417 as construed by the Court. See Trahan and related authorities cited ante. The 1965 revision continued to provide for charging “the same offense” in several counts of a charging instrument, adding though “but may not charge more than one offense.” As construed, however, the term “offense” really meant “transaction.” Vannerson and progeny. Not only are we entitled to presume the Legislature was aware of that construction, but also we know it was made aware of that fact, albeit in another context, by the Committee Comment to proposed § 3.01 in the Blue Book, viz:
“The criminal episode concept is not new to Texas law. The Texas courts have interpreted the statutes ... which speak in terms of the ‘same offense,’ as meaning the same ‘criminal transaction’ ” 9
Thus, what the Legislature eliminated in 1973 was authority to charge in a single indictment two or more offenses arising out of the same criminal transaction. Today, if such authority exists, it must be found elsewhere, and since Janu[944]*944ary 1, 1974 that authority has not been satisfactorily identified in opinions by this Court.
Therefore, we cannot hold that a pleader may allege “in a single indictment two or more offenses in separate counts if the offenses arise out of the same incident, act, or transaction, as was alleged in the instant cause.”
Even if one could safely find that the common law rule enunciated by Mr. Bishop, reproduced by Judge Hurt in Boren v. State, supra, was not necessarily implicated in article 433 and its successors, including the 1965 version of Article 21.24, that rule would not permit the State to join in one indictment the several counts alleged here, nor permit the trial court to enter separate judgments on verdicts of the jury. That rule is: “[I]n another class of cases [the object of an indictment in several counts is] to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs ..." or as sometimes stated by the Court, “several counts are introduced solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offense,” Dalton v. The State, 4 Tex.App. 333 (Ct.App.1878) and Weathersby The State, 1 Tex.App. 643, 645 (Ct.App.1876). And, of course, with a general verdict there could be but one conviction, punishment and sentence.
Having come to the above conclusions, we now address the failure of appellant to object to the joinder or to protest dual convictions in one trial. Though it has been often said that “[fjailure to so treat multiple counts in an indictment [to allow but one conviction of a single offense] requires reversal even when the appellant has not raised the error on direct appeal,” the precedents for many decisions to that effect may be traced back to some of the same authorities discussed ante. In Garcia, for one instance, the earliest case cited is Wimberley v. State, 94 Tex.Cr.R. 1, 249 S.W. 497 (1923); it in turn cited several older cases and particularly approved of Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377 (1922), because it had reviewed those cases and others. But the leading opinion addressed by Banks is Crawford v. State, supra, wherein the Court developed the presumption that two or more felonies charged in the same indictment are “parts of the same transaction,” obviating an election on the part of the State, but limiting the judgment to but one conviction on the theory that it “appropriates the guilty intent which runs through and connects these several acts of offenses and makes them one.” Banks, supra, 246 S.W. at 379. Under that rationale, regardless of how many counts are inserted to allege two or more offenses arising out of the same actual or presumed transaction, there is ultimately only one resultant offense of which an accused may be convicted and for which one may be punished. In that circumstance, though it was often held that the matter of being convicted of more than one offense must be called to the attention of the trial court in order to obtain review of the error on appeal, e.g., Wimberley and Banks, supra, the more reasoned view is that a trial court is “without legal authority” to enter judgment and impose sentence for more than one offense. Ex parte Easley, 490 S.W.2d 570, 571 (Tex.Cr.App.1972).
On the other hand, when separate and distinct offenses alleged in one indictment are shown by the evidence adduced by the State to come from different criminal transactions, “at the request of the defendant the state should be forced to elect upon which count or transaction it will prosecute,” McKenzie v. State, 32 Tex.Cr.R. 568, 25 S.W. 426 (1894). That follows from what the Court characterized as “a clear legal right,” Smith v. State, 101 Tex.Cr.R. 615, 276 S.W. 924, 925 (1925). However, like most legal rights, that one too may be waived. Article 1.14, Y.A.C.C.P. Accordingly, if election is not demanded and there is no protest against being convicted for more than one felony under the same indictment, the Court said in Wimberley v. State, supra, it “would not feel called upon to raise the question on its own mo[945]*945tion;” and while it did notice a violation in Monroe v. State, 146 Tex.Cr.R. 239, 172 S.W.2d 699 (1943), because “appellant has made no complaint of the erroneous procedure ... we do not base a reversal thereon,” id., 172 S.W.2d at 700. One reason for requiring some character of objection in the trial court was stated in Banks, supra, 246 S.W. at 379, viz:
“Sometimes it may occur, as in Blackwell v. State, 51 Tex.Cr.R. 24, 100 S.W. 774 [1907], that accused demands no election and makes no protest at conviction for various felonies charged in the indictment, on the theory, perhaps, that a plea of former conviction or acquittal would avail him in bar of further action on any act or offense included in the indictment. ..”
In the instant cause the court of appeals found that the two counts respectively alleging attempted capital murder of Officer Thurman and attempted capital murder of Officer Stone arose out of different transactions. Thus, failure to demand an election or to protest conviction for each separate offense risked the very appellate finding of waiver made by the court of appeals. For reasons stated in the cases cited just above, in that the court is correct.
Accordingly, the judgment of the Waco Court of Appeals is affirmed.
THOMAS G. DAVIS and CAMPBELL, JJ., concur in result.
ONION, P.J., and MILLER, J., dissent.