Diaz v. State

Full title: Elio Torres DIAZ, Appellant, v. The STATE of Texas, Appellee

Court: Court of Criminal Appeals of Texas, En Banc

Date published: Sep 19, 1990

796 S.W.2d 183 (Tex. Crim. App. 1990)

Opinion

Nos. 0068-89, 0069-89.

September 19, 1990.

Appeal from 177th Judicail Diatrict Court, Harris County, E.W. Oatteson, J.

Catherine Greene Burnett, (Court-appointed on appeal), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and John F. Carroll and Mike Roe, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

Appellant's petitions for discretionary review refused.

DISSENT TO REFUSAL OF APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge, dissenting.

In rejecting appellant's jeopardy claim the court of appeals found that "where, as in the instant case, the state's charge of possession with intent to deliver and delivery required proof of two separate quantities of cocaine, there can be no double jeopardy issue because the statute allows prosecution for each instance." Diaz v. State, 762 S.W.2d 701 (Tex.Cr.App. 1988).

Without intimating what our own determination might be, I would grant the petition to consider this novel and significant question of jeopardy law.

Because the majority does not, I respectfully dissent.