Lowe v. State

427 S.W.2d 867, 1968 Tex. Crim. App. LEXIS 963

Opinion

OPINION

DICE, Judge.

Appellant was charged by indictment in separate counts with the offenses of forgery and passing as true a forged instrument in writing.

Upon his plea of guilty and waiver of a trial by jury, he was convicted and assessed punishment at confinement in the penitentiary for a term of three years.

A personal affidavit has been filed by appellant requesting the dismissal of his appeal.

We decline to grant the request, in view of the erroneous recitation in both the court’s judgment and sentence that appellant was adjudged guilty of the offense of “Forgery & Passing.” Gaines v. State, Tex.Cr.App., 231 S.W.2d 429 (#24921).

The court was without authority to adjudge appellant guilty of the two separate offenses, but under the record the judgment and sentence may be reformed to recite that he is adjudged guilty of the offense of “forgery,” as charged in the first count of the indictment. Smothermon v. State, Tex.Cr.App., 383 S.W.2d 929. It is so ordered.

As reformed, the judgment is affirmed.

MORRISON, J., dissents.