OPINION
This is аn application for post-conviction writ of hаbeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. See generally
Ex parte Young,
The petitioner contends that either his cоnviction in Cause No. 83,404 for robbery or in Cause No. 83,403 for assаult with intent to commit murder with malice was obtained in violatiоn of the “carving doctrine” in that he had previously been convicted in one or the other case and bоth convictions involved the same victim, the same transaction, and the same time.
Without holding an evidentiary heаring, the trial court, being the same court which originally cоnvicted the petitioner, made the following findings of faсt:
“1. The court accepted a plea of guilty frоm petitioner first in Cause No. 83,402 for the murder of Samuel Ward Crаger and sentenced the defendant to life therein.
2. Secondly, petitioner received another life sentence upon a plea of guilty in the robbery of Thоmas Dueon Nanney, which occurred on February 12, 1971, in Cause No. 83,404.
3. Thirdly, petitioner received a 25-year sentence to run concurrently with the life sentence in Cause Nо. 83,404, for the assault upon Thomas Dueon Nanney on the same date and at the same time of the robbery. This was in Cause No. 84,303.” [Emphasis supplied.]
No cоntention is advanced as to finding No. “1.” The validity of that cоnviction is not in issue.
This Court is of course not bound by the findings of the trial court in a habe-as corpus proceeding.
Ex parte Jewel,
It is well established that “the prosecuting attorney may cаrve as large an offense out of a single transaсtion as he can but he must cut only once . . . .” 1 Branch’s Penаl Code, 2d Ed., Sec. 654, p. 625 (1956);
Ex parte Jewel,
supra;
Fleming v. State,
The State has filed no brief in this Court аnd except for a “general answer” filed in the trial сourt does not appear to dispute the faсt findings made by the trial court and set out above.
The question before us becomes which conviction must be set аside. The general rule is that where the record does not reflect which conviction occurred first, it will be assumed that the lower numbered conviction occurrеd first and the high numbered conviction will be set aside.
Ex parte Birl,
In the instant case, we have a specific and unchallenged finding of fact by the trial court that petitioner’s guilty plea in Cause No. 83,404 was entered prior to the entry of the guilty plea in Cause No. 83,403. We therefore conclude thаt petitioner’s conviction for assault with intent to cоmmit murder with malice in Cause No. 83,403 should have been barred under the carving doctrine.
For the reasons stated, the rеlief sought is granted and petitioner’s conviction for аssault with intent to commit murder with malice in Cause No. 83,403 is set asidе.
Notes
. Although still providing excellent guidance on the procedures to be followed in post-conviction writs of habeas corpus, Ex parte Young, supra, must be read in conjunction with the 1977 amendment to Art. 11.07. See Acts 1977, 65th Leg., p. 1974, ch. 789, Sec. 1, eff. August 29, 1977.