In Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991), appellant was charged by indictment with two counts of murder. Id. at 955.
The first count of the indictment was valid, while the second count was void because it was based upon an invalid theory of felony murder. Id.
The jury charge authorized conviction under either count of the indictment, and appellant's trial counsel failed to object to either the indictment or the jury charge. Id.
The jury returned a general verdict, so that "it was impossible to determine upon which count the conviction was based." Id.
The Court of Criminal Appeals held that when an indictment alleges two counts of an offense, the first of which is correct and the second of which is void, and the jury returns a general verdict of guilt, it is ineffective assistance when trial counsel fails to object to the indictment and the jury charge. See id. at 956.
The Court explained that, "by failing to object to the indictment and to the jury charge, the trial counsel permitted an invalid theory to be submitted to the jury," and "there exists a reasonable probability that the jury may not have convicted appellant had trial counsel objected and that theory not been submitted." Id.