concurring.
The Code of Criminal Procedure is intended, inter alia:
“to embrace rules applicable to the ... prosecution of offenses ... and to make the rules of procedure in respect to ... punishment of offenses intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.”
Article 1.03, V.A.C.C.P.1
I
One such right vouchsafed by the Constitution of Texas is the right to know “the nature and cause of the accusation against him, and to have a copy thereof.” Article I, § 10; Article 1.05. That right is effectively implemented in a criminal prosecution through “the primary pleading on the part of the State,” i.e., “the indictment or information.” Article 27.01; see, e.g., Garber v. State, 145 Tex.Cr. 44, 165 S.W.2d 741, at 742 (1942); Zweig v. State, 74 Tex.Cr. 306, 171 S.W. 747, at 753 (1913, 1914) (Motion for Rehearing). The constitutional intent is that the face of a charging instrument provide an accused with sufficient information to enable him to know that with which he is charged in order to prepare his defense; he is not required to look elsewhere, nor is it enough to say he knows the offense with which he is charged. Arti*523cle 21.10, V.A.C.C.P. and e.g., Benoit v. State, 561 S.W.2d 810, at 813 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333, at 335 (Tex.Cr.App.1976); Wilson v. State, 520 S.W.2d 377, at 379 (Tex.Cr.App.1975).
Two or more offenses may be joined in a single indictment, each stated in a separate count, where the offenses arise out of the same criminal episode within the meaning of Chapter 3 of the Penal Code. Article 21.24.2 An accused in custody must be served with a certified copy of the indictment, Article 25.01, and an accused shall be arraigned thereon, Article 26.01, but not until two days have expired, unless he waive his rights thereto, Article 26.03. A plea of not guilty constitutes a denial of every material allegation in the indictment. Article 27.16.
An accused is entitled to ten days from service of indictment to file written pleadings. Articles 27.11 and 27.12. The trial court may set a case for pretrial hearing, and the record thus made including rulings by the court shall become a part of the record of the case. Article 28.01, §§ 1 and 3. Then or thereafter upon timely notice the State may amend the charging instrument before the date the trial commences, or the State may amend after trial commences if accused does not object — in either instance with leave of court and under its direction. Articles 28.10(a) and (b), and 28.11. Similarly, with consent of the trial judge the State may dismiss a criminal action in whole or in part upon filing a written statement setting out reasons for such dismissal. Article 32.02.
II
A
Applicant was arrested on October 20, 1987, and held without bail on a complaint charging an offense of aggravated robbery on October 16, 1987, of Gerri Rose, and indicating another charge for aggravated robbery. He first appeared with counsel on November 13, 1987, and the matter was reset pending action by a grand jury.
The indictment in the primary cause was returned on January 8, 1988; it contains three numbered counts, each alleging an aggravated robbery: on October 16, 1987 of Gerri Rose; on August 28, 1987, of Debra Kay Williams; on September 24, 1987, of Deborah D. Yates. From January 28 through July 15, 1988, the case was routinely reset for various purposes such as “motions”, “non issue” and, again, “motions;” 3 bail was fixed at $100,000, but the record does not show that applicant was released on bond. Other than one “non issue” setting, the remaining settings thereafter were for “trial;” both parties announced “ready for trial” December 5, 1988, and the case was “carried” for two *524days and then reset for February 13, 1989. On that day the State announced “ready for trial,” as presumably did applicant since the case was again “carried” without any further recorded event until February 15, when in the afternoon a panel of venire-persons were seated in the courtroom. So far as the record of this primary cause reveals, the sole indictment then extant is the same one originally returned January 8, 1988.
B
The court of appeals was impressed with the facts that in his preliminary address to the venire the judge of the trial court “read only count II of the indictment;”4 that after the jury was impaneled and sworn and outside its presence the State “presented only count II of the indictment to which appellant pled not guilty;” that the court charged the jury “on only count II of the indictment, and the jury found appellant guilty of aggravated robbery as charged in count II of the indictment; ”5 and that the State “presented no evidence on counts I and III of the indictment[.]” Accordingly, the court of appeals viewed the situation thus:
“... It is as if the State abandoned or dismissed counts I and III early in the proceedings ... before the jury was voir dired, impaneled and sworn and proceeded on only count II.”
Ex parte Preston, 801 S.W.2d 604, at 605, 606 (Tex.App.—Houston [1st] 1990).6 Based on that premise, the ultimate rationale of the court of appeals is that applicant “did not choose the jury in the first trial to hear evidence regarding counts I and III; that jury was voir dired only as to count II.” Id., at 607.7 Therefore, the court held that “jeopardy did not attach to *525counts I and III of the indictment in the first prosecution.” Ibid.
But an “as if” scenario is beyond the intent, purpose and objective of our rules of criminal procedure. See ante, at 516— 517. Once a charging instrument containing more than one count is presented to the trial court, and the record shows that accused had notice of it (by service or other functionally equivalent manner), was arraigned, announced ready for trial with the prosecution and proceeded to select a jury, jeopardy attaches to the original indictment when the jury is empaneled and sworn, Crist v. Bretz, 437 U.S. 28, at 38, 98 S.Ct. 2156, at 2162, 57 L.Ed.2d 24, at 33 (1978); McElwee v. State, 589 S.W.2d 455 (Tex.Cr.App.1979)—unless prior to that latter event the record shows that in open court, in the presence of accused and with leave of court, the prosecution elected to sever (assuming a right to do so, see n. 2, ante) or to dismiss one or more counts, accused did not object and the court granted severance or dismissal of same in an order noted in the judgment ultimately entered. See Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979) (election to proceed on one count prior to jury being sworn precluded jeopardy from attaching to other count); cf. Garza v. State, 658 S.W.2d 152 (Tex.Cr.App.1982) (election to proceed on one count after prosecution closed barred second trial on “abandoned” count; see cases collected at 154-155).
Ill
Given the law applicable to and appellate presumptions from the facts of the case, applicant qua defendant was absolutely justified in relying on the face of the indictment presented January 8, 1988, upon which he had been arraigned, to prepare his defense against three counts of aggravated robbery alleged therein, and to expect the State to proceed according to the indictment as presented by the grand jury.8
Nothing in the record of the primary cause remotely suggests that the State asked to withdraw its announcement of ready or requested a continuance; elected to sever or dismiss any count; gave applicant notice and sought leave of court to amend the indictment; proposed to amend in a manner affording applicant an opportunity to object; or made any amendment with leave of court or under its direction. And, consistent with his position, when the prosecution closed its case applicant moved for an instructed verdict of acquittal on counts I and III.9
In harboring the notion that jeopardy attaches solely to the count read to the venire and mentioned during voir dire, the prosecutor put the State at risk of jeopardy attaching to all counts when the jury was empaneled and sworn. Appellate prosecutors have not called to our attention anything in the code of criminal procedure or in the caselaw construing any germane provision which in our touted adversary criminal justice system demands that an accused so situated must protest when it appears the prosecution is concentrating its effort on only one count of a three count indictment, the trial on which the parties at least twice announced ready without qualification or condition. That thereafter the applicant was “arraigned” outside the presence of the jury and pleaded “not guilty” before the jury on the second count alone is *526no consequence in a jeopardy analysis since Crist v. Bretz, supra, abrogated our Texas rule. McElwee, supra, at 458-459.
For those reasons, the disposition of this cause on original submission is correct, as is the determination now that the State’s Motion for Rehearing is without merit.
. All emphasis here and throughout this opinion is mine unless otherwise indicated. All statutory articles cited are to the code of criminal procedure unless otherwise indicated.
. In Chapter 3, before amended by Acts 1987, 70th Leg. Ch. 387, § 1, effective September 1, 1987, § 3.01 provided that '“criminal episode’ means the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property).” Without further notice an accused may be prosecuted "in a single criminal action for all offenses arising out of the same criminal episode," § 3.02(a); cf. § 3.02(b), in which event sentences for which he has been found guilty “shall run concurrently,” § 3.03; however, should he exercise his right to a mandatory severance of offenses, Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977); Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.1976), in its discretion the court may order sentences to run either concurrently or consecutively, §§ 3.04(a) and (b).
Because permissive joinder of offenses is a prerogative of the State in the first instance, neither Article 21.24 nor Chapter 3 recognizes any right in the State thereafter to sever offenses, the obvious implication being there is none. Thus if one exists, it must be founded in the rules of common law. Article 1.27. The State merely assumes one, but has not identified any such rule for us.
. Because the statute mandates it, Article 26.01, there is an appellate presumption that applicant was arraigned on the indictment, Tex.R.App. Pro. 80(d). Indeed, the instant judgment recites that applicant had been "duly arraigned [before] both parties announced ready for trial and thereupon a jury ... was duly selected, impaneled and sworn[.]" Tr. 70.
Early on, applicant filed a comprehensive motion for discovery and an elaborate motion to quash the indictment, the latter contending, inter alia, he was entitled to a severance of offenses under § 3.04, V.T.C.A. Penal Code. Notwithstanding later settings for "motions,” so far as this record reveals neither the motions nor any other by either party, if filed, were ever called to the attention of the judge of the trial court and ruled on.
. In Guzman v. State, 732 S.W.2d 683 (Tex. App. — Corpus Christi 1987) no PDR, the court observed, correctly in my view, viz:
“If it is the State’s contention that appellant was not placed in jeopardy on all the counts because not all counts were read to the jury, the State is wrong. Although this was the rule in Texas before Crist v. Bretz [437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24], it is not the rule now. McElwee v. State, 589 S.W.2d [455] at 455.”
Id., at 686, n. 1.
. As an aside, one notices that the verdict signed by the foreman of the jury reads:
"We, the jury, find the defendant, Carl Thomas Preston, guilty of aggravated robbery, as charged in the indictment.”
. Of course if that is what the State desired to do, it could have "abandoned or dismissed counts I and III” on the record in a manner prescribed by law. In this connection, worthy of note is that the court of appeals pretermitted the State’s account of a pretrial “discussion” between the trial prosecutor and defense counsel to the effect that she would be proceeding only on count II, as well as the State’s insistence, therefore, that "Counts One and Three were neither severed nor abandoned[.]” State’s Appellate Brief, at 2-3. In short, the decision below is not bottomed on the theory advanced by the State.
Nonetheless, to gain an affirmance the State continues to hold here: "Counts One and Three were not dismissed, severed or abandoned; it was the prosecutor's understanding that she would simply try the remaining two counts in the future whenever the witnesses were available.” State’s Reply Brief on Petition for Discretionary Review, at 1. But, as the majority demonstrates, her "understanding” was not shared by counsel for applicant. Majority opinion, at 517-518. Had it been mutual, the parties had only to memorialize their "understanding” in writing and file it for inclusion in the transcript. See Tex.R.App.Pro. Rule 8.
.Actually in his "voir dire” counsel for applicant addressed the venire so briefly that his comments are reported in just thirty-four lines. II S.F. 69-71.
Without alluding at all to the indictment, he reprised two general propositions, i.e., that in all criminal cases the burden of proof is on the State; that his definition of reasonable doubt is “doubt based on reason,” and while the legislature failed to define the term, "if you are not sure that is reasonable doubt,” and he hoped no venireperson "would guess someone into the penitentiary.” Id., 70.
He noticed that “together the court and the prosecutor have asked several hundred questions,” so he was not going to ask any individual questions; he remarked that "we are not picking a jury,” but those "we don’t want;” that each side has ten strikes and "we decided [how to use them] probably in the first ten minutes so what we are doing now is making sure we get a fair and impartial jury.” Id., 70-71.
His only question: "[I]s there any reason that one of us failed to mention or we have just left out why you couldn’t be a fair and impartial juror in this case?” [pause] "Since there are *525none, I will give you back all of this time. Thank you very much.” Id., 71.
. During the year after it was filed his counsel did not pursue the allegation in the motion to quash that he was "entitled to a severance of offenses." See note 3, ante. Unlike defendants in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), applicant did not "successfully oppose" consolidating charging instruments for trial, id., at 142-143, S.Ct., at 2212, L.Ed.2d, at 175, and thus is not "solely responsible for the successive prosecutions," id., at 154, S.Ct., at 2218, L.Ed.2d 182.
. Through counsel applicant presented his motion for acquittal, viz:
“The defendant further moves for acquittal on the other two counts of the indictment that have never been severed from this case, and there has never been any motion to sever, there has never been any motion granted to sever them. The State has not put on any evidence at all and Mr. Preston moves for a verdict of acquittal on both of those cases, both of the other counts, Count 1 and Count 3.”
The court summarily denied the motion. V S.F. 24-25.