concurring.
Antonio Siller, applicant, asserts through a post-conviction application for writ of ha-beas corpus, see Art. 11.07, V.A.C.C.P., that his judgment of conviction for indecency with a child is void because it was founded upon an indictment which charged not only the offense of indecency with a child but also charged the offense of rape of a child.
Siller was convicted on a single indictment of the offenses of rape of a child and indecency with a child. The majority correctly holds that only one of his convictions is valid.
*621Notwithstanding that an indictment or information may contain as many distinct counts charging the same offense as is thought necessary by the prosecutor to meet the proof as it transpires, see Art. 21.24, V.A.C.C.P.; Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972), and the cases cited on page 571; Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974); Breeden v. State, 438 S.W.2d 105 (Tex.Cr.App.1969); Lewis v. State, 638 S.W.2d 148 (Tex.App.El Paso 1982) (P.D.R. Refused 1982), up until January 1, 1974, when the New Penal Code became effective, when a single indictment charged two or more distinct felonies in different counts, whether or not the offenses were property or non-property offenses, the accused could be convicted of only one count of the indictment. See Garcia v. State, 574 S.W.2d 133, 134 (Tex.Cr.App.1978); Santoscoy v. State, 596 S.W.2d 896 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Jordan v. State, 552 S.W.2d 478 (Tex.Cr.App.1977); Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975); Ex parte Easley, supra; Monroe v. State, 146 Tex.Cr.R. 239, 172 S.W.2d 699 (1943); Hufstetler v. State, 116 Tex.Cr.R. 175, 33 S.W.2d 461 (1930); Hill v. State, 109 Tex. Cr.R. 635, 6 S.W.2d 763 (1928); Nowells v. State, 94 Tex.Cr.R. 571, 252 S.W. 550 (1923); Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377 (1922); Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766 (1892).
In that instance, the State was required to elect which count of the indictment it intended to proceed on, abandoning the others, or the counts had to be considered by the fact-finder in a conditional manner. Whether trial was to the court or the jury, a verdict of guilty could be reached as to any count, but not more than one. The State was not, however, required to make an election, but if it did not, conditional submission was mandatory. See Jordan, supra; Koah v. State, 604 S.W.2d 156 (Tex.Cr.App.1980); Crocker, supra. Thus, the law as it existed prior to January 1, 1974, was clear: Whenever a single indictment charged two or more distinct felonies in different counts, and regardless of whether the offenses were property or non-property offenses, the accused could be convicted of only one count of the indictment. The above all inclusive rule of law remained the law of this State until the present Penal Code became effective on January 1, 1974.
However, Art. 21.24(a), V.A.C.C.P., in no uncertain terms now expressly provides that “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.” (My Emphasis.) V.T.C.A., Penal Code, Section 3.02(a) also provides in no uncertain terms that Penal defendants may be prosecuted in a single action for all offenses “arising1 out of the same criminal episode.” The term “Criminal Episode” is defined in V.T. C.A., Penal Code, Section 3.01, to mean “the repeated commission of any one offense defined in Title 7 of this Code (Offenses Against Property).” Thus, it is only in the instance when an indictment alleges multiple offenses, and such offenses are offenses against property, that multiple convictions may be obtained on a single indictment. In this instance, it is obvious that the offenses of aggravated rape: of a child and indecency with a child are not offenses against property, nor do they involve “the repeated commission of any one offense defined in Chapter 7 of the Penal Code (offenses against property).” Thus, in this instance, the offenses of aggravated rape of a child and indecency with a child were improperly joined by the State in the same indictment in this cause, and, under the above rules of law, there can only be one valid conviction.
However, if the judgment of conviction can be reformed, it will be reformed to reflect conviction on only one count of the indictment. Barr v. State, 100 Tex.Cr.R. 533, 271 S.W. 624 (1925). In this instance, it is possible to reform Siller’s judgment of conviction to reflect that he stands convicted and sentenced only for the offense of aggravated rape of a child, which was the *622first verdict that the jury returned in this cause. Thus, the majority correctly reforms applicant’s judgment of conviction.
Notwithstanding that I agree with the majority that it has reached the correct result in this cause, I also find that it is unfortunate that unnecessary and weedy language has cropped into the opinion. I believe that in this instance this happened when the author of the opinion was attempting to answer some outlandish, ridiculous, asinine, or outrageous suggestion that one of the parties to the lawsuit made, perhaps, under the guise that you never know what spoiled and damaged goods the Court might be buying on that particular day. In this instance, this cause is governed by the provisions of Art. 21.24, V.A. C.C.P., and this Court’s past decisions interpreting and construing the present statute as well as its predecessors. Notwithstanding some weedy language in the majority opinion, the Court reaches the correct result in holding that Siller, the applicant, was subject to only one punishment.
However, if it was formerly well established that multiple sentences for non-property offenses could not be obtained on separate counts in the same indictment, then how can one square up what the Court holds in this cause with what this Court held in Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1984.) If the “failure to demand an election or to protest conviction for each separate offense” precludes a defendant from complaining on appeal or by way of post-conviction writ of habeas corpus, see Drake v. State, supra, then why does applicant Siller obtain any relief in this cause? Drake v. State, supra, was wrongly decided.
Whenever a single indictment charges two or more distinct non-property felonies in different counts, the accused may be convicted of only one count. Gordon v. State, 633 S.W.2d 872 (Tex.Cr.App.1982); Garcia v. State, supra; Beaupre v. State, supra; Ex parte Easley, supra; Monroe v. State, supra; Wimberley v. State, 94 Tex. Cr.R. 1, 249 S.W. 497 (1923). Failure to so treat multiple non-property counts in an indictment requires reversal even when the defendant does not raise the error on direct appeal. Such may be attacked in a collateral proceedings. Garcia v. State, supra; Beaupre v. State, supra; Ex parte Easley, supra.
For the above and foregoing reasons, I respectfully concur.
MILLER, J., joins.