Ex Parte McWilliams

parte Stephen Ex A. McWILLIAMS.

No. 64508. Texas,

Court of Appeals Criminal

En Banc.

Oct. 1980. Rehearing

On May Rehearing

Second Denied

July Ketchand, Houston, appel-

Robert L. lant. Huttash, Austin, Atty.,

Robert State’s the State.

OPINION wаs violated when was he convict- upon ed the same evidence for two offenses DAVIS, TOM G. Judge. arising out of same continuous assault- This is an application for writ habeas ive involving victim. 11.07, corpus filed pursuant Art. V.A.C. reflects March record that on July C.P. On petitioner entered 1975, petitioner gunpoint robbed pleas guilty aggrava- to the at offenses ted robbery, aggravated rape aggrava- and clerk of store in grocery Areola. Immedi- ted kidnapping. Punishment in each cause thereafter, ately petitioner forced clerk was assessed thirty Petitioner years. to leave with him an automo- the store now raises numerous contentions concern- bile. ing the validity each of these convictions. cases, In two held recent we have that Initially, he maintains that his indictment carving precluded convictions aggravated for rape is fundamentally de- for aggravated robbery aggrava- both fective culpable to allege failure men- ted rape, where it was shown that both tal state. alleges perti- The indictment offenses resulted from one continuous as- part petitioner nent that did then and against saultive same transaction vic- there: tim. v. Tex.Cr.App., Orosco “unlawfully, by threats, force and 121; Tex.Cr.App., S.W.2d Ex Parte Curry, without J_L_, the consent of Mrs. Orosco, In it S.W.2d 712. was found ravish and have sexual intercourse with that use where the and exhibition a knife J-L-, Mrs. a female not then and provided aggravating circumstances in there the wife of the said Stephen McWil- offenses, both appellant not be сon- could liams, and the said Stephen McWilliams Likewise, Phillips victed in both. J_ did compel submission Mrs. State, Tex.Cr.App., 597 929 it was S.W.2d L-to said ravishment and sexual in- aggravated held that convictions for both tercourse by threatening to inflict death kidnapping aggravated sexual abuse and serious bodily injury to the said Mrs. J_L_” resulting from continuous assaultive victim against transaction the same violat- Smith, In Ex Parte 571 S.W.2d ed Lastly, doctrine. in Tatum this Court held that in order establish Tex.Cr.App., 534 criminal responsibility for the offense of was held that convictions for three offenses rape, the allege prove State must that arising single against out of a intentionally, defendant acted knowing victim violated the double or ly, recklessly. V.T.C.A.Penal Sec. clauses of both State and Federal Con- culpable 6.02. When a state is mental an stitutions, required reversal of two of element of an offense and the indictment the three allege element, fails to convictions. that the indictment will fundamentally sup defective and supports We find that evidence port a See, Zachery conviction. finding trial petitioner’s court’s that one of Tex.Cr.App., 552 S.W.2d 136. convictions was obtained in violation We petitioner’s find that indictment judgment doctrine. Since the aggravated rape allege fails an of each day, cause was entered on the same we fense and that the conviction based thereon presume will in the judgment low- is void. sought The relief the convic as to See, est cause was first. number entered 10,170 tion in Cause No. in the 23rd Judicial Calderon, Tex.Cr.App., Ex Pаrte District County Fort Bend sought conviction The relief as to the granted and the ordered indictment is dis 10,171 in Cause No. in the 23rd Judicial missed. County District Court of Fort Bend granted. aggra-

Petitioner next contends he was Petitioner’s conviction sub- ject to double jeopardy and the vated is set kidnapping aside. petitioner’s remainder of contentions, contentions five related peti

will be addressed they relate to his challenges tioner the sufficiency of the evi aggravated robbery support aggravated conviction. dence to his robbery conviction. This repeatedly Court has held Petitioner next raises three contentions corpus proceeding that a habeas may not be concerning aggravated his robbery indict- used collaterally sufficiency attack the ment. He maintains that the indictment is See, support evidence to a conviction. allege defective because it fails to culpa- Dunn, Ex Parte Tex.Cr.App., 571 S.W.2d ble mental state and ownership. He fur- 928; Dantzler, Ex Parte Tex.Cr.App., 571 argues ther that the indictment is insuffi- S.W.2d 536. These contentions are without cient because it does not allege that merit.1 person robbed was the person assault- Petitioner next contends his ed. plea of guilty aggravated robbery Petitioner’s aggravated indictment for involuntary because he was told that if he robbery alleges in pertinent part that he did plead did not guilty, he would receive a life then and there: during sentence. The record reflects that “unlawfully steal, and intentionally take pleа the guilty proceeding, the trial court over, exercise control and carry away petitioner admonished pursuant to Art. 26.- J-L_, from Mrs. hereinafter called 13, petitioner V.A.C.C.P. The fact that en owner, corporeal personal property, plea guilty tered a in order avoid wit, money, with intent to deprive said greater punishment does not entitle him to owner of said property and without the See, corpus habeas relief. Ex Parte Thom owner, effective consent of said and said as, 474 238. This contention is with S.W.2d defendant, committing the course of out merit. said theft take, steal, and with intent to complains Petitioner next of a obtain, and maintain prop- control of said one-on-one showup which was conducted erty, did then and there intentionally and shortly State, after his arrest. In Fierro v. knowingly place threaten and the said Tex.Cr.App., 437 S.W.2d it was held owner in fear of bodily imminent injury plea guilty, voluntarily that a if and death by then and there using and made, understandingly is conclusive as to exhibiting wit, a deadly weapon, to guilt defendant’s and waives all non- firearm.” jurisdictional pre defects. An in a error trial procedure identification does not con The allegation petitioner that act jurisdictional stitute a defect. We find that ed “intentionally” is sufficient to allege a error, petitioner’s plea guilty waived if culpable 6.02, mental state under su Sec. any, showup in the conducted after his ar pra. There is requirement no that a rob rest. bery allege indictment Ex ownership. Lucas, 162; Parte Tex.Cr.App., 574 S.W.2d Petitiоner next plea contends his Servance v. Tex.Cr.App., 537 S.W.2d guilty was the result of ineffective assist- 753. Lastly, the victim of robbery Among things, and ance of other counsel. he the victim of underlying attorney theft maintains that his coerced him need not See, pleading guilty, be the into refused to contact cer- person. Watson v. witnesses, tain Tex.Cr.App., and “offered no advice or legal representation.” We find that the indictment is sufficient to allege an offense under V.T.C.A. Penal post-conviction In a habeas cor action, Sec. 29.03. pus petitioner has burden of judicial 1. The record contains a confession en- the indictments. The confession is sufficient petitioner See, pleas support guilty pleas. By- tered at the time entered his evidence to his guilty. confession, petitioner Tex.Cr.App., In the admits to ron v. 528 S.W.2d 224. allegations the truth of the and facts contained Sanders, have, “THE Tex.Cr.App., you COURT: What did lick proof. Ex Parte crack-up on head or a or nervous allegation your S.W.2d 383. An of ineffective breakdown, or happened? what counsel firmly will sustained if it dem- affirmatively founded and the record I don’t “THE DEFENDANT: remember alleged anything.” onstrates counsel’s ineffectiveness. State, Tex.Cr.App.,

Harrison v. Petitioner was then transferred to Utica, Hospital Utica State New York. describing departure his treatment evidentiary The trial court held an institution, from this petitioner stated ap hearing petitioner’s in connection with follows: plication. hearing, At there was no “THE did they And what do COURT: claim of evidence offered relative to the way of treatment or consultation? ineffective In the assistance counsel. Gave me “THE DEFENDANT: medi- evidence, of such petitioner absence has cation and saw a doctor time. discharge having failed to his burden of doctor one time “THE COURT: Saw a affirmatively record demonstrate al gave you medication? leged represen ineffectiveness counsel’s Yes. “THE DEFENDANT: tation. This merit. contention without they you “THE Then released COURT: petitioner Finally, aggravated attacks his in about a week? robbery conviction on the basis “THE DEFENDANT: I left. hearing trial court failed to conduct his escaped? You “THE COURT: competency to stand trial. He maintains Yes. “THE DEFENDANT: that there was sufficient evidence before “THE COURT: Ran off? the trial court in to raise a bona fide Yes.” “THE DEFENDANT: doubt as to his competence to stand trial a competency jury that should have report The trial court then examined a impaneled. been Benjamin dated May from Dr. Sher Following a from the district request 1975. case, In the court instant the trial petitioner attorney, Dr. Sher examined was relieved of to any responsibility hold a to competency effort determine an to his pretrial hearing by petitioner’s virtue of examination, trial. a result of this stand As ready entry announcement of of a com- petitioner Dr. concluded that was Sher guilty plea any suggestion without of in portion trial. A petent to stand See, competency. Morales Tex.Cr. stated, that report “Mr. McWilliams stated 418; App., Thomas v. Hospi- spent timе in the Mattewan he some .App., Tex.Cr S.W.2d Beacon, He that tal in New York. stated hospital by was the court.” he sent to prior accept- that record reflects to ing his pleas petitioner of guilty, informed attorney trial then stated Petitioner’s the court that he been had confined two compe- was opinion, petitioner his mental institutions State New accepted then tent to stand trial. The court September York. From until January guilty pleas. his Hospi- he was at the Mattewan State 46.02, 2(b), provides Art. Sec. V.A.C.C.P. Beacon, tal in regard New York. to With follows: as confinement, guilty record from the de- during “If the trial evidence plea as reflects follows: brought incompetency fendant’s “THE COURT: ... source, attention of the court from right, during “All you the time that hearing conduct a out the court must there, you you were in did know jury to determine presence of the place? were in that sup- not there is evidence whether or incompetency to stand begin- finding

“THE Not port DEFENDANT: at the ning. trial.” Robinson, impanel

In Pate v. a competency jury although 86 S.Ct. it was 836, 15 (1966), L.Ed.2d 815 discovered mid-trial that was the defendant interpreted process the due escapee Hospital. clause to an from Rusk State require that a criminal defendant be diagnosis afford- was found that an earlier that the ed an adequate hearing competency mentally defendant was ill meant little stand trial judge whenever the trial be- present when contrasted with a evaluation comes aware of counsel, a bona fide doubt concеrn- by his own the trial court and a ing competence. present that defendant’s In order com- psychiatrist question on the violation, to find a Pate it must be shown petency. supra Ainsworth v. at 522. trial, during that before or evidence of such case, In the instant matters incompetence brought was to the court’s question which could have raised the See, Hagans, attention. Ex Parte Tex.Cr. at of trial infor- competency the time was App., 558 S.W.2d concerning petitioner’s prior mation two Halford, In Ex Parte Tex.Cr.App., 536 commitments at mental institutions. When questioned the Court found that the trial to the for his commit- reason court ment, should have competency petitioner conducted a “I don’t responded, remem- case, hearing. In that petitioner’s anything.” ber He es- was shown have mother testified that he long history caped approximately had a from an institution of mental illness and irrational behavior two and one-half before the instant years following a injury head as a child. He was compared offenses. This evidence must be shown to have previously been committed to Dr. examination conducted some Sher’s to two mental Three institutions. doctors two months before trial in which he con- although petitioner testified that was a “so- petitioner competent. cluded that was Pe- ciopathic personality” testimony he was nevertheless the time of the titioner’s legally sane. The petitioner’s attorney guilty pleas trial was coherent and evidenced an stated petitionеr’s ability understanding proceedings. Lastly, to communi- cate “adequate.” We found this evi- the conduct and demeanor observing after dence sufficient trial, to raise a bona fide doubt petitioner at the time of the court Halford, competence. as to Ex supra Parte competent. him to be found at 232. upon evi- extensively Petitioner relies

Likewise, Long, Tex.Cr.App., in Ex Parte hearing evidentiary dence introduced at the petitioner S.W.2d maintained application to held in connection with this that the court should have conducted a com- support competency his contention that a petency hearing. Long, In several of the hearing have been held at the time should petitioner’s relatives stated that his conduct hearing pled guilty. evidentiary he The was “strange and abnormal.” Two friends approximately was held four and one-half However, described him as “insane.” three years after trial. petitioner doctors testified that the was of evidentiary hearing from the record “sound mind” at the time of trial. We attempts by four previous reveals suicide found the evidence sufficient to create a It was further shown that at petitioner. bona fide competence doubt as to and that was committed to Mat- petitioner the time the trial court should a sep- have conducted charged he had with Hospital, tewan been hearing arate to determine the issue. criminal offenses in New York and multiple Schenectady County Previous admission to a mental hos pital a result of mental coupled explanation County with an does not found that “as require hearing (petitioner) lacks ca- separate a to determine disease or defect [he] competency. Tex.Cr.App., proceedings to understand the pacity Cruz 817; in his own defense.” against Bledsoe v. Tex.Cr. him or to assist App., showing 519 S.W.2d 646. In Ainsworth v. There is no that this determination Upon his transfer Tex.Cr.App., 493 S.W.2d no error has ever been set aside. diagnosis was found in was refusing Hospital, petitioner’s the trial court to to Utica reaction; compel as follows: death to a woman to submit “psychotic depressive disorder; drug personality paranoid; knowing intercourse without it? dependence.” Following escape his from petitioner reads that did The indictment Utica, his condition was stated “unim- threats, by “... force and unlawfully, proved.” Following his in- arrest J_ and without the consent of Mrs. stant in County, peti- offenses Fort Bend L_, ravish and have sexual intercourse tioner was described as a “chronic schizo- J_L_, with Mrs. a female not then phrenic.” Lastly, in an affidavit dated Jan- Stephen and there the wife of the said uary 17, 1980, Jones, Lucian a psy- clinical McWilliams, Stephen and the said McWil- chologist, petition- states that he examined compel did liams submission Mrs. 18,1979. er on November states Jones J_L_to and sexu- said ravishment examination, upon the basis he is al intercourse to inflict threatening opinion, petitioner incompetent was bodily and serious to the said injury death pled at the time guilty he in 1975. J_L_” Mrs. There is no showing that of the evi- V.T.G.A., Code, 21.02, Penal sets Section dence from be- evidentiary hearing was rape: ‍‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​‌‍forth the elements of fore the trial court at time petitioner “(a) person A an offense if he commits pled guilty. absence of such a show- sexual has intercourse with female ing, the matters before the court not his wife con- without female’s guilty plea time insufficient sent. raise a bona fide doubt as to competency “(b) intercourse is the fe- without circumstances, stand trial. Under such male’s consent under one or more of there was failing no error the trial court following circumstances: sponte sua to conduct competency hear- her “(1) compels partic- he or submit ing.2 ipate by force that overcomes such ear- sought The relief as to the conviction might reasonably nest resistance as 10,169 Cause No. in the 23rd Judicial Dis- circumstances; expected under trict Court of Fort County Bend is denied. “(2) he her to or compels partic- submit sought The relief as to the conviction threat, ipate by any communicated 10,170 Cause granted No. and the indict- actions, words, deeds, or that would ment is ordered dismissed. The relief prevent resistance of ordi- woman sought 10,171 granted Cause No. nary resolution, under the or sim- conviction set prosecution aside and circumstances, ilar because of reason- ordered dismissed. harm; able fear of ...” It is so ordered. V.T.C.A., 21.03, Penal sets Section aggravating forth circumstances DOUGLAS, Judge, dissenting. rape: grants ag- The majority the relief in the “(a) person if A commits an offense he gravated rape casе because the omission rape commits defined in 21.- Section in the culpable indictment of a mental rape this code or child as a state. culpable mental states are that defined in Section 21.09 of code one intentionally, knowingly, or recklessly and he: negligently commit the act constituting can, crime. It is inconceivable that one life,

threats to “(2) compels rape by take a woman to submission to the compel submit to death, bodily injury, intercourse or serious by recklessness threat negligence. imminently It that one can be inflict- kidnapping conceivable or threaten to inflict or bodily injury anyone.” serious ed on Zapata provide competency hearing. 2. Petitioner Cf. does contend that he was Rather, Estelle, (5th 1979); incompetent fact Na- at the time trial. v. 588 F.2d 1017 Cir. solely Estelle, 1974). (5th his contention centers around the failure v. F.2d 794 Cir. thaniel State, In (Tex.Cr. encourages Childs v. crime. carving S.W.2d When the doc- App.1977), the defendant may applied contended that trine be to a situation which robs, allege indictment failed to a defendant kidnaps, rapes, to whom the and mur- victim, was, threat of death was ders his communicated and the defendant suffers no thus, punishment more than fundamentally defective. We held he would had he “logical only that a committed one of the crimes. Justice arising deduction from a and reason prosecution reasonable demand for each of reading of the entire indictment separate offenses so that a robber will prosecutrix appel submitted to be kidnapping, raping, deterred from lant’s act because he threatened her with murdering the victim. the imminent infliction of death.” S.W.2d at 615. petitioner was convicted of the of- State, (Tex.Cr. Clark aggravated 527 S.W.2d 292 fenses of kidnapping, V.T.C.A. indictment, Code, 20.04, App.1975), aggravated we held that Penal robbery, Sec. whole, Code, 29.03, read as a apprise aggra- sufficient V.T.C.A. Penal Sec. rape, the defendant of vated V.T.C.A. Penal 21.03. the offense under the stat Sec. These State, ute. also offenses were committed in the same See Banks v. episode or criminal transaction. (Tex.Cr.App.1976). submission, 21.17, original V.A.C.C.P., On the conviction for provides: Article aggravated rape was vacated and the in- “Words used in a statute to define an dictment ordered the in- dismissed because strictly pursued need not be fundamentally dictment was found to be indictment; is sufficient to use give defective. We will no further consid- other conveying meaning, words the same to that correctly eration matter which was or which include the sense of the statuto- original decided on submission. The convic- ry words.” aggravated upheld, tion for robbery was When the present indictment in the case aggravated kidnap- but the conviction for whole, is read as a it is clear that McWil- ping was vacated and the indictment was charged liams is aggravated rape. with ordered dismissed because the conviction incomprehensible can someone for kidnapping carving violated the doc- threaten bodily to inflict death and serious trinе. We have now doc- re-examined the injury on another force and threats carving trine of and have concluded that it have sexual intercourse complain- with the Although many should be abandoned. ant and not know about it or intend to do it. opinions of this Court have stated that the indictment, We should look at the absent a doctrine is mandated the Double motion to quash, only to see if it sufficient- Jeopardy of the Clauses Constitution ly charges against an offense the State. United and the Constitution of this States grants The majority aggra- relief in the incorrect; opinions these the doc- vated kidnapping conviction. The relief trine of is not mandated should not granted aggravated rob- Jeopardy Double Clauses. bery convictions for the reasons set forth in agree The dissenters that the doctrine of the dissenting opinion in Orosco is not based in constitutional or 121 (Tex.Cr.App.1980). statutory provision; it is based on tra prosecute dition—it seemed unfair OPINION ON STATE’S MOTION stealing bailee for both the horse and the FOR REHEARING Quitzow Tex.App. saddle. DALLY, Judge. (Ct.App.1976). urge The dissenters that a petitioner post-convic in this prosecutor only should be allowed to take 11.07, tion corpus proceeding, habeas Art. his “best shot” and obtain one conviction V.A.C.C.P., carving robs, seeks relief kidnaps, rapes, under the when a defendant However, doctrine. We carving now abandon the murders his victim. since doctrine for compelling carving supported by reason that is not consti- doctrine

823 In cases this statutory provisions, tutional or and since decisions. some Court cites tradition, carving, this has Herera “same evidence test” and doctrine of both the unsound, now “continuous assaultive transac proved it should aban- Paschal State, supra, and doned. tion” test. Duckett v. See State, (Tex.Cr. 359 Hawkins v. There is no definitive statement of these two tests App.1976). Neither doctrine; ap carving it is a nebulous rule Steele, A scholarly criticism. without See plied jurisdiction. Initially, in only Texas, Defense Jeopardy Review of the carving was offenses applied when the two Review, (1981); 16 Texas Tech.Law 393 charged contained ele common material Kirchheimer, Act, Offense, required ments or when the two offenses (1949); Jeopardy, Double 58 Yale L.J. 503 the same evidence to convict. Herera v. (1965). Jeopardy, Twice in 75 Yale L.J. 262 State, (1896). 35 943 Tex.Cr.R. 34 S.W. This Court added the “continuous act or Neither the Federal nor State Constitu- multiple transaction” test in Paschal v. 49 prohibit tions nor Texas statutes (1905). Tex.Cr.R. offenses com- prosecution statutory S.W. Since for two time the “same evidence” and mitted in the same transaction. The consti- speak jeopardy “continuous assaultive transaction” tests of double provisions tutional randomly have been In Duckett v. applied. in terms of the “same offense” rather than State, 454 (Tex.Cr.App.1970) Supreme S.W.2d 755 de “same transaction.” The Court fendant’s robbery conviction was held to be United States Sanabria United carving States, violation of the because doctrine the same evidence support (1978) power was used to both stаted that the L.Ed.2d that conviction and legislature: defendant’s conviction define lies in the offenses Then, assault with intent to murder. “[Ojnce Congress statutory has defined a (Tex.Cr. Douthit v. S.W.2d ‘allowa- prescription its App.1972) the court used the continuous prosecution’ prescription ble unit of assaultive transaction test to determine scope protection determines the af- whether defendant’s two prosecutions by prior acquittal.” forded conviction or (of rape victim) the same were in violation which the This deference doctrine. The court held Congress has to the shown United States intercourse, the various acts of al to the should also be shown this Court though part all of a continuous assaultive legis- Legislature. only Texas Not has the transaction, were sufficiently separated by separated crimi- clearly lature defined and time and place so that they part were not offenses; known, di- nal it has also made a single purposes. transaction for carving intent insofar as rectly indirectly, its The court returned to the “same evidence” multiple prosecutions are concerned. test in Robinson v. (1974) Chapter 3 of the Texas Penal Code (Tex.Cr.App.1975) uphold defendant’s offenses multiple property prosecutions trespass convictions of criminal and misde legislature appears considered. meanor theft. Significantly, under a “same from this intended to exclude other offenses transaction” analysis, prosecutions to allow provision, and would havе disallowed the second conviction within one criminal occurring each offense since upon the theft was committed defend offense, Prosecutions for each transaction.1 trespass ant’s University onto the of Hous occurring in property other than offenses ton campus. to be prohibit- one criminal transaction are supported

That different decisions can be when in violation of the double ed by these two Federal and theories indicates the lack of clauses of the State precedential value doctrine Constitutions. Code, Compare Chapter (Octo- Multiple Revision of the Penal Final Draft Prosecutions Jeopardy, 1970) Multiple Chapter and Double A with Prosecu- Texas Penal ber Revision, Proposed tions, State Bar Penal Committee V.T.C.A. Code

824 one, is applica provision whether each requires

The difficulties involved in the tion the carving proof doctrine are numerous. of a fact which the does other not.” Any sequence conduct can be labelled Blockburger States, 299, v. United 284 U.S. and Court construed “transaction" has 180, (1932); 52 S.Ct. 76 L.Ed. 306 Brown v. Many the term in an manner. inconsistent Ohio, 161, 2221, 53 U.S. S.Ct. L.Ed.2d carving cases doctrine are decided under the (1977); States, v. Whalen United in upheld conflict. In one case the court S.Ct. 63 L.Ed.2d 715 three sodomy defendant’s convictions of (1980); Vitale, v. Illinois 447 U.S. person occasion, with same on the same 65 L.Ed.2d 228 S.Ct. The Lee (Tex.Cr.App. Blockburger is satisfied if each test statuto- 1974); in another case the court reversed ry requires proof offense of a fact that two of defendant’s three convictions for may the other At does not. trial there be a exposure, fondling, statutory indecent overlap proof substantial in the of each rape, involving person also same on one offense; however, it is the statuto- separate Calderon, Ex parte occasion. 508 S.W.2d elements ry of each offense which must be 360 (Tex.Cr.App.1974). The court reasoned examined under this test. Brown v. Ala- that in first sepa case each offense was bama, (5th 1980). 619 F.2d 376 Cir. rate, case, in the but second it held that Blockburger preclude rule will not though even un separate offenses are here; requires two each convictions statute law, der they nonetheless were proof of a which the does fact other not. they transaction because were proved by 20.04 (Ag- See V.T.C.A. Penal Secs. the same acts. Id. prosecutions Successive gravated Kidnapping) (Aggrava- and 29.03 for aggravated robbery and aggravated Robbery). ted rape on one victim on one occasion have Opinions Supreme Court after carving been found to the doc contrary Blockburger dealt other double have with trine, yet prosecutions rape successive Ohio, jeopardy su- matters. See Brown sodomy of one victim on Oklahoma, pra; Harris v. 433 U.S. permissible. occasion have been held See (1977); 53 L.Ed.2d Illinois (Tex.Cr. Orosco v. 590 S.W.2d 121 Vitale, States, Whalen supra; v. United App.1978) parte Joseph, and Ex supra, the matters considered those 891 (Tex.Cr.App.1977). The pertinent cases are not to the deci- matters is application unsound and its has sion this case. been erratic. jeopardy is no double Since there The doctrine of aggravated violation the convictions for made; court constitutions and statutes kidnapping aggravated robbery, provision make no for such a doctrine. Rehearing granted; Motion State’s abandoning we Since are doc relief will sought be denied. trine, will we now decide double ‍‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​‌‍so ordered. questions under the strict construction the Constitutions of the United States ROBERTS, Judge, dissenting. of this prohibitions against State. The be ing put twice in jeopardy for the same that, requires A statute Court of “The requires defining it, test Appeals, Criminal each case decided “same offense.” review, on or shall appeal either deliver United provided States has a test: such opinion setting a written forth the reasons ” V.A.C.C.P., applicable for such decision.... Article rule that where the “[T]he 44.24(d). Although ap- or not on

same act a vio- this case is constitutes review, may lation two or on as ... statutory provisions peal distinct be “heard the test to be the court seems applied appeal,”1 to determine an to have it, whether there two or has deliv- offenses chosen so to for the court hear V.A.C.C.P., 11.07, Art. Sec. 3.

825 robbery, forth six thetical defendant is indicted for opinion setting ered a written might reasons for its decision. It as well rape, may sep- he insist on kidnapping, so, doing have refrained from for none obtaining arate trials. After a conviction justify the reasons can its decision to dis- long and a sentence for one offense in an carving card the doctrine. prosecutor will not often choose episode, a (and wit- expend to his the court’s and the reason” is “compelling The court’s first nesses’) money sequence time and in a that, carving says deterrence. It under the prosecutions in the for the other offenses doctrine, robs, kidnaps, “a defendant [who] first, “compelling” episode. The court’s ... suffers rapes, and murders his victim scrutiny. than he would had he reason cannot withstand punishment no more one of the crimes. Justice only committed is that “the The court’s second reason prosecution and reason demand for each of doctrine of is not mandated offenses,” epi- separate to deter such only This is Jeopardy Double Clauses.” sodes. This seems to be more a rhetorical holding half true. The court is correct in compelling flourish than a per- reason. A does that the United States Constitution robbed, kidnapped, raped, son who and mur- doctrine, require not but it is death, dered his punished by victim could be wrong the Texas about Constitution. doctrine;2 regardless is it explicit- has not held clear, lights justice even in the re- reason, ly that the Fifth Amendment does not the prospect of an additional transaction,” carving, imprisonment marginal- quire term of would or “same be ly greater test, prospect rejected opportunities deterrent than the it has death. adopt point the test so often that Ohio, See, sufficiently e.g., clear. Brown v. Even if murder is removed frоm the 2227, 161, 170, 2221, 432 97 53 U.S. S.Ct. hypotheticals court’s list of horrible each of J., (1977) (Brennan, L.Ed.2d 187 concur- the remaining punishable by offenses is Oklahoma, 429 ring); Thompson v. U.S. confinement unlikely life.3 1053, 768, (1977) 97 50 L.Ed.2d 770 S.Ct. many robbers who are not deterred J., (Brennan, dissenting to denial of certio- prospect of one life sentence will be de- rari) (collecting ten other of certio- terred from denials abducting their victims sentences; prospect rari); Washington, of two life it seems Harris v. U.S. likely 183, 184, (1971) more that robbers expect not to be 92 30 L.Ed.2d 212 S.Ct. caught shorter, at all. If Texas had (statement Brennan, deter- Douglas, and Mar- sentences, might minate shall, Swenson, make sense JJ.); Ashe v. 397 U.S. say multiple punishments are needed 1189, 1196, 25 L.Ed.2d 469 90 S.Ct. epi- reflect the seriousness of a criminal (Brennan, J., (1970) concurring); Abbate v. comprised multiple sode that offenses. But States, 187, 196, United U.S. S.Ct. Texas’ provides very range law wide 666, 671, (1959) (separate 3 L.Ed.2d punishment, maximum, with very high Brennan, J.); opinion Hoag v. New Jer- Therefore, felony. each the sentencer is 829, 837, 464, 477, sey, U.S. S.Ct. allowed aggra- to take into account all the J., dissenting). (1958) (Douglas, L.Ed.2d 913 vating epi- circumstances of the criminal Campana, 414 Pennsylvania also See sode, punishment and to set high at the end (1973) (vacat- L.Ed.2d 44 the scale for a offense.4 plurali- in which ing judgments state court required held that Fifth Amendment ty had multiple punishments Not are un- rule,” remanding cases, “same transaction they unlikely needed in most judgments were imposed hypo- If the court’s of whether frequently. consideration V.T.C.A., V.T.C.A., Code, 19.03(a)(2). purpose Penal underlies Penal Sec. 4.This Code, Unadjudicated (“Admission 12.45 Sec. V.T.C.A., 20.04(b) (aggra- Offensе”). Penal Secs. kidnapping), 21.03(c) (aggravated rape), vated 29.03(b) (aggravated robbery). constitutions, least or federal one other adopted based state or state has such a both).5 holdings Recent of this court that a rule since.8 Exhaustive research dis- might violation of the viola- carving doctrine cover others. tion of the Fifth Amend- and Fourteenth The court’s fourth reason its decision ments, are wrong. that carving is the doctrine has been stated protections may give greater States This applied inconsistently. is undenia- rights individual than mínimums re- bly (although true not of the court’s all Amendment,

quired Fourteenth examples actually inconsistency).9 show California, Cooper however. 386 U.S. justify only But reason a reform of this can 788, 791, (1967). 17 L.Ed.2d 730 the doctrine so that it will be stated long It been jeop- has held that the double applied Judge consistently. more Clinton’s ardy provision Rights6 in the Texas Bill of below, opinion, at I length, discusses this so just does that. pass on shall to the court’s fifth reason: Tex.App. Hirshfield v. legislative intent. (1881), ques- the court considered the (in The court claims footnote 1 and the tion, is “What meant term ‘same text) accompanying legislative that re- offense’ the Texas Jeopardy Double [in jection a proposal carving of to reform the discussing After the doctrines of Clause]?” Chapter proposed penal 3 of doctrine in conviction, former acquittal and former an intent abolish doc- code indicates that pointed court out that “it must borne apparent. is logic trine. The not One mind that therе principle applica- is another suppose legislative rejection would that of ble to subject jeopardy, this is which opposite: a reform would indicate the quite distinct from that which obtains in Legislature’s unwillingness to this change pleas of acquittal gen- former conviction or well established rule of law. erally. is carving....” This the doctrine of The court’s sixth reason is strict construc- Id. at 215. has Carving had a constitutional The points tionism. court out “the that basis for a The century. simply court is provisions speak constitutional of double wrong saying that it “initially” ap- jeopardy terms the ‘same offense’ plied in 1896 and that it supported is “not ” transaction,’ rather than ‘same and con- ... provisions.” constitutional The cludes, carving “The doctrine of was court court is recognizing correct in carving that made; constitutions and statutes make no doctrine, is not a federal it provision for such a doctrine.... will pretending carving that [W]e is a mere “tradi- questions jeopardy now decide double under tion” which not rooted in the Con- Texas the strict construction of the Constitutions stitution. State”; of the United this States and rejecting court’s third reason for is, Blockburger that rule. carving is that it is a applied only “rule jurisdiction.” This, too, inspection jeopardy inso- Close the double wrong implies far as it not jurisdiction Blockburger that no other clauses will reveal the rule uses a “same carving transaction” rule. As of than it reveals the rule. more rule,7 at least five states used such and at as made” as the exactly The onе is “court plurality example 5. On remand the abandoned its Fifth an cases are in 9.As holdings conflict, adopted Amendment and the court cites court Lee (Tex.Cr.App.1974), comparing “same transaction” rule as state law. Com- S.W.2d Campana, Calderon, (Tex. monwealth 854 parte Pa. 314 A.2d with Ex Cr.App.1974). reading opin A close the Lee ion applied not reveals doctrine was Tex.Const., all; I, Art. Sec. 14. the case seems to have been federal, disposed Blockburger—style of on analysis. Lee inconsistent (1965) (Alabama, does illustrate Yale L. J. 270 n. 34 illustrate, may application carving. Georgia, Jersey, Texas). in New Oklahoma and stead, Blockburger. confusing with 5, supra. 8. See n. multiple punishments the area of fashion Even in other. role of this court is to is not the tool of mechanical Blockburger rules so such the broad commands for which the applica- adjudication the constitution can specific have consistent yearn. tions. How can strictly construe terms court seems such as “due process,” “equal protection,” Blockburger assumption that “[The] or “unreasonable seizures”? searches and jeopardy scope of the double defines said, legal As con- historian has “Strict purpose and na- clause misconceives the judicial structionism can be a balm for the Blockburger is not a ture of that rule: conscience, impre- but not much more. The constitutional ‘litmus test’ for determin- cision of the constitutional text makes strict sentence violates ing particular whether a faintly constructionism a ridiculous us- clause. Rather double age judicial .... It is a form of laissez-fair- made clear in Whalen eism which judge ... defers to other States, 445 U.S. 684 S.Ct. United [100 [v. states, government,10 branches of or to the 1432, (1980)], 63 L.Ed.2d Blockbur- 715] agencies, or to law-enforcement as the case ger statutory ‘a rule of construction is Law, Levy, Against be.” L. 30-31 may whether ... relied on ... to determine (1974). given provid- Congress has in a situation may be statutory ed that two offenses

Section 14 of Rights the Texas Bill of at 691 punished cumulatively.’ 445 U.S. says, offense, “No person, for the same shall * * omitted). (footnote at S.Ct. put [100 1438] be twice in jeopardy of life or liber- Congress’ inquiry essential is intent. ty....” [T]he Like the clause in corresponding 687, 100 at 1436.” See 445 U.S. S.Ct. Amendment, the Fifth “decep- it contains 279, Hawkins, 658 F.2d United States tively plain language given has rise [which] ” (5th 1981). 287 Cir. problems complex.... both subtle and Bretz, 28, 2156, 32, Crist v. 437 U.S. 98 S.Ct. Legislature’s The intent is much Texas 2159, 57 L.Ed.2d 24 Congress’s, harder to find than doctrine is problems a solution to the non-existent,11 nearly sources have been deciding person may subjected when a be today.12 even are obscure multiple punishments closely trials or too, mentioning, It is worth acts; related Blockburger part test is creating court a collision between a different approach prob- to one of these Blockburger analysis analysis and its own suggestion lems. The that one is based on a offenses. As the court of lesser included stricter construction of the constitutions irrele- Blockburger regards as today, holds false; than the other is there cannot be a may trial there be a vant the fact that “[a]t strict construction of the constitutional each overlap proof substantial in the term, “same offense.” offense; statutory separate ... it is the repeating is worth must be the Blockbur- of each offense which elements ger test, adopted today, is not a substitute this test.” This court’s examined under with, for the begin doctrine. To lesser offenses is the analysis of included time, Blockburger will not resolve the on the question part at least of the opposite; multiple (as case, whether may trials be had dis- an offense was a lesser facts of the tinguished multiple though from even its elements punishments included offense which are imposed trial). encompassed by the of- strictly were not Ohio, See, Brown v. 432 n. 97 alleged. e.g, fense Christiansen 2221, 2226, (1977). State, (Tex.Cr.App.1979) L.Ed.2d 187 575 S.W.2d Byers, Compare opinion, parte the court’s ante: “The Ex 12. See Supreme 1980), (Tex.Cr.App. deference which the Court has shown based on four which was Congress tape recordings. the United States be should also untranscribed Legislature.” shown this Court to the Texas State, 361, 364, 11. Gillette v. S.W.2d J., (Tex.Cr.App.1979) (Roberts, dissenting). circumstances, Supreme

(under some issuance Texas State, may bad check be lesser found in Wilson v. 76 (1876) included Tex. theft); great weight that “the of American Hazel v. author- supported the ities” conclusion was to (unlawful 700-701 (Tex.Cr.App.1976) carry- decision, reach. was an Included Indiana ing weapon is lesser offense of included Jackson 14 Ind.R. from felon, possession unlawful of firearm which the Texas Court extracted though proof even requires former offense following: of “carrying,” which latter offense does split up “The State one crime and not).13 reconciled, Until these cannot holdings are parts. prosecution it in A prosecute that, will though law be even an offense any part crime fur- bars is a lesser included offense of under another prosecution upon ther based the whole or law, person may state be convicted and Wilson, part supra, same crime.” punished for both Blockburger. under This at 83. constitutionally will be interesting. In conclusion: The court an accepted discards is the same transaction “[When] [it] reason, good for no exchange for a doc- against one offense and... trine will involve more than difficulties accused on sepa- cannot convicted it now admits. I am convinced that the charging parts rate indictments different grass greener Blockburger on the side of of one as a distinct offense. the fence. I dissent. conviction one of A on the indictments prosecution a on bars the other.” Ibid. ONION, J., TEAGUE, J., join in P. and in appellate Also 1876 the other court in this opinion. Quitzow State, Texas 1 Tex.App. decided CLINTON, Judge, dissenting. (Ct.App.1876),and can so far as be as- Application certained the first rendition of the doctrine shorthand appeared opinion courts the Texas for more than hundred in one years by Presiding Judge and five of the Court written provided signifi- now has a cant White: protection against being citizen

twice in placed jeopardy. Its dis- brutal prosecutor right “The had a carve as patch by a majority my “got largе Brothers an offense out of this as neck,”1 controversy the blood of in my could, and must yet he cut once.” I Id., dissent. must at 53-54.2 State, Day Holmes, 13. These cases from derive a 1. Justice Oliver Wendell in letter (Tex.Cr.App.1976), Laski, explained 315-316 in once judges being that the matter of sala- V.A.C.C.P., which the court construed Art. 37.- ries included in the income tax 09(1): “An a lesser offense is included offense particularly, did interest him he not “at by proof if ... it is established of the same or in I in all love with what had written” dissent required less than all the facts to establish the “got controversy had not in blood of ” charged commission of the .... (Howe my neck.” 1 Holmes-Laski Letters 68 Day in dictum that the statute lesser “defines 1953) at ed. 266. One other occasion Holmes included offense in terms the facts had not write in “when the intended to dissent misinterpreted case” has been to mean the evi- my opinion fighting came and stirred blood.” misinterpreta- dence the case. this Under “Here,” Id., applauds at 560. commenta- tion, unlawfully carrying weap- the offense of tor, “is the of.” Schae- stuff dissents made on could be a lesser included offense murder fer, Policy, Precedent and 34 U.Chi.L.Rev. if alleged the evidence showed that the murder- (1966), Aldisert, reprinted permission carrying weapon. er was The correct con- 1976) (West Publishing Judicial Process Co. Day (and statute) struction of of the is that the 802, 804. By term “facts” refers to “factual elements.” construction, lesser included offenses year 2. A of Texas before the Court in a case can be determined from the four passing, general indictment, had nоted in “It is a rule that a alleges corners of the which required may party proceeding “facts held a criminal be to establish the commission of offense,” offense, small, distinguished great from ‍‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​‌‍answer for or which mere mat- transaction,” legally ters of evidence. can be out of the carved fense,” ground and on this Hirshfield had Quitzow’s hiring The “transaction” was and, indictment, from livery excepted contending stable a horse to the he not, therefore, time, prosecuted for swin- a saddle and bridle and not could returning Applying dling. rejected by them when The contention was agreed. doctrine, jury trial court and the was instructed that the Court held that con- swindling. the trial was for precluded viction of theft of the horse trial the offense exceptions The Court held the should have conviction theft of saddle and bri- sustained, judgment been reversed the dle. The Court relied on and discussed Wil- prosecution. dismissed the son v. supra, and several other au- thorities. opinion Judge Hurt In I, (Ct. meaning Simco v. examined the of Article Tex.App. § App.1880) White, clause in Presiding Judge jeopardy for the the Constitution Court, opined defendant, the State of Texas and concluded that “a why once a who person put shall not be twice stole three horses simultaneously, each be act, acts, omission, for the same or which owner, longing to a different was convicted law, by positive are forbidden and to which them, of theft of any one of he could not annexed, conviction, any punishment thereafter be convicted of theft of thе other followed, prescribed in this Code.” horses, therefore, swindling “a conviction “Because the taking transaction—the upon supported which rests and is alone the three horses at the same time—would the act of as true the instrument passing constitute but (Wilson one offense in law set forth in this indictment is a full and v. The 76); 45 Texas plea complete satisfaction of the law which for- former good would be [of conviction] bids, upon prescribes, pun- conviction upon of, the strength and by virtue of though ishment for said act.” But rule, another well settled in criminal forged passing same act of as true a instru- practice, which prosecutor allows the ment “enters into and constitutes the vital large carve as an offense single out of a least, offenses, wit, of, elements two can, transaction as he yet he must cut swindling knowingly uttering forged and a Quitzow State, once. v. The 1 Texas true,” for that instrument as a conviction Ct.App. 47. Here is where the doctrine complete act “would be a satisfaction of the support would come in and proposition it general violated law.” As a plea. [Referring to Wharton Criminal an accused “could was correct that as Law and ‘authorities cited in the note.’]” have been convicted under the indictment Id., at 349. knowingly of the offense of swindling for following year Judge Hurt wrote for instrument, passing forged as true a there- State, the Court in Hirshfield v. 11 Tex. for plead fore he cannot this conviction App. 207 (Ct.App.1881). Upon an indict- swindling prosecution uttering to a for a allеging ment all constituting instrument,” the elements forged still uttering offense of forged instrument borne in mind that there is must be “[I]t followed other allegations swindling principle applicable another to this sub- Hirshfield was swindling. convicted of ject jeopardy, quite which is distinct Then in effect was a provision panel pleas of for- from that which obtains precluded code that the offense of swin- acquittal generally. mer conviction or dling taking from a case of or some theft carving, This is the doctrine and proscribed other opera- offense “out of the explicitly recognized effectively ap- and tion of law which defines such other of- plied in a number of cases our Su-

citing Bishop on Criminal indicated.) Law. Jackson mine unless otherwise 421,423 State, (All (1875). emphasis 43 Tex. or, grounded; and if it

preme Appeals. Court Court was one continuous [Cit- ing Id., them and at 215. transaction, in which appellant perpetrated others].”3 assault, robbery the prosecution Presiding Judge White reiterated once,” State, could come but Moore v. Wright doctrine in Tex.App. Tex.Cr.R. 25 S.W. 1120 In Her- (Ct.App.1884), a case where accused had era v. cited and discussed acquitted been of stealing cattle of Houston majority opinion, the explained Court put and then to trial and convicted of theft terms, expansive doctrine in more of cattle of Floyd at the same time. viz: plea acquittal held of former presented good, was not but if the “[W]hen demonstrated that government, may which include dis- case had been one of former conviction offenses, tinct government criminal plea former conviction would have been can carve but sustained once. can take the because: greater, prosecute that; and itor can one, “... being the transaction offense, take prosecute the lesser once, prosecution could carve but that; a prosecution and conviction having once carved and convicted it could for either will be a equally bar to another not claim another and second conviction subsequent prosecution for the other of- against party the same for the fense, which involved same transac- offense. It is the carving, doctrine of Id., tion.” law, well principle established S.W. at criminal which makes distinction between the Finally, my present purposes, in Sad pleas of acquit autrefois and autrefois berry v. 39 Tex.Cr.R. S.W. convict where several ostensible crimes (1898), the Court was confronted with an a single covered But transaction. unusual implicating fact situation the carv carving, for this doctrine of plea of [the] ing doctrine. “on Sadberry, account of former conviction would not be maintain- indignities upon some heaped during him able in law.” fishermen,” day by some approached Reference is made to opinion his earlier night their camp at while four of them Simco; Presiding then the Judge further campfire playing were seated around a explains Wright that had been first convict- gun cards. From his with 5 shot loaded No. cattle, of taking ed Houston’s slugs, Sadberry fired one shot “the State had carved already and obtain- wounded all four He campers. was later offense, ed his conviction for the same shooting tried and convicted one of them and in law that is a satisfaction of the murder, with intent then when entire so far as he is concerned.” placed assaulting on trial for the brother State, supra, Wilson v. upon. is then relied the first pleaded with intent to murder Id., at 159. plea, former conviction. That the Court found, was well taken and should have been Appellate in jurisdiction criminal cases Judge sustained. For the Davidson Court was and transferred vested in the Court pithily wrote: Criminal Appeals by constitutional amend- case, “The its adopted ment state had carved and had 1891 that became Article V, conviction, and, so, Through Davidson, 5. a Judge having § who had secured done moved under by over the the state of the case Appeals,4 from Court the disclosed state, record, “If it Court would soon the same vio- was not entitled to further State, lence and upon prosecution. assault were in both v. 9 Tex. relied See Simco 338; conviction, State, cases to App. Wright Tex.App. sustain the then v. plea former well down in two was 152. The doctrine laid [of conviction] State, State, State, 329; supra; v. v. v. Quitzow Wilson v. Ben Rex Ben- Ala. Me. State, Damon, ford, Barr, supra; 980; Tyler 387; State v. v. State Clem v. 42 Ind. 420. Williams, Lump 101; Humph. 29 Tenn. State, Nelson, 327; kin v. State 14 Ind. (iii). 19-20 S.W. Texas, penal code cases is the well-settled rule in and have four times simulta- revised—1879, 1895, necessary neously it is not to cite other authori- been 1911 and ties.” its own time: the code of 1925—and once in penal in 1965 and the procedure criminal far, What been thus had demonstrated Legislature code in 1973. Never has the then, twenty is that over the course of some State, presumed by whose members are Texas, years Supreme Court of surely pos- law doctrine6 and to know the Appeals Court of and the Court of Criminal so, sess and to do re- power authority found, time, under- Appeals, each in its own amended, pealed, altered or modified the stood, applied explained is matter of contrary, doctrine. On the it a with- to the bench and the bar—all Legislature only recently record that provoke out disagreement enough serious rejected proposal to do that. dissenting point firmly of view. Such grounded ought jetti- doctrine of law not be Chapter proposed 3 in the revision judicial writings soned because day latter penal introduced and re- originally code as seen some to make an “erratic” ported broadly out committee defined application of it. episode” “criminal to embrace all offenses produced by the same criminal conduct as Even less attractive is the notion that the accomplish- well as all offenses aimed at doctrine is somehow inherently suspect be- objective, ment of a criminal and for judicial which, cause it is a creation it the first time would have said by majority, finds no “mandate” in area; “codified all the law this substi- jeopardy provisions of our constitutions. single precisely-worded tuted a definition The body whole of common law was made different episode of criminal for the five and modified for centuries without constitu- definitions of ‘transaction’ identified in great jurists tional dictates.5 The who law; incorporated the case recent wrote for their respective courts in this changing decisions State before the century turn of the never the Texas law in this area.” pretended the carving doctrine was consti- tutionally prescribed precise words and undertaking acknowledged That has been terms, they did provided find that Patterson, by Searcy “ambitious” bar against a citizen’s being again put in “cutting across as it had to both substantive jeopardy for another by plea offense shown penal procedure.” law and criminal of former conviction to have been commit- proposal rejected adoption of a floor ted in the same covering corrupted concept amendment which State, offense, Wilson v. first Simco application repeated and reduced its to “the Hirshfield v. Herera v. State commission of one offense defined and Sadberry supra, all and that Against Prop- Title 7 of the code [Offenses the doctrine was so well established in the pair erty].”7 consultants and ob- criminal applied, law that it should be scope servers have and the “no doubt its they uniformly insisted that changes it would have ef- several radical doctrine be prosecutors followed rejec- fected in Texas law cоntributed to its trial courts of the State. Commentary following tion.” Practice V.T. C.A. Penal 3.01. §

Moreover, during the one hundred and five years Legisla- the doctrine has been of what the Putting at work in this record Texas the code of procedure proposed Chapter criminal ture cut out of the 3 in 590, (Tex. only judi- Reynolds 5.“The common law not of 592 consists 6. precedents (opinions cases) cial Cr.App.1977); in decided 427 Townsend v. principles, standards, doctrines, 55, (Tex.Cr.App. 1968). and tradi- 62 * * * tions. Our common law started in the Ages, practically nothing.” Middle lar, from Lef- defined, episode” “criminal does not 7. As thus Law, Judge-Made Sources of 24 Okla.L. implicate carving the doctrine at all. (1971), Aldisert, quoted by op. Rev. 319 cit. supra, at 92-93. 832 Legislature of its light presumed knowledge

the of the the is to something call it is it longstanding doctrine, carving we are “enti- opinion Supreme not. The Court tled legislature, through to assume that the margin went in the explain that since inaction, its its of the approval” indicated “only single single a is violation of a statute doctrine, Servicenter, Allen Sales Inc. v. here,” & issue at there was no need to analyze 863, (Tex.1975); Ryan, 525 S.W.2d 866 see the case jeopardy under familiar tests “used Poole, 624, Republic also Ins. Co. v. 257 S.W. to determine whether a Antonio, (Tex.Civ.App.1923—San writ may give separate prosecutions, rise to con- ref’d.). punishments separate victions and/or under Patently Supreme statutes.” Court is Therefore, though carving doctrine showing not point “deference” to the judicial creation, a legislative approval still abdicating duty its own constitutional just eight years sanction the doctrine function to decide under jeopardy questions ago—the strongly last in- time—may be developed years— doctrines it over the has ferred. cases cited and discussed in the In spite of so in what is obvious footnote, Sanabria, 70, supra, U.S. at respect, majority gleans somehow from 2182, at are several reflect there in S.Ct. rejection of proposed Chapter enact- 3 and judicial system the federal as well. nothing ment of the four sections have disconcerting enough two Nor it carving do with the doctrine that developed analyzing theories have what Legislature “appears” to have intended “to pur- constitutes “same for transaction” allow prosecutions for each offense occur- poses applying the doctrine. ring within one criminal transaction.” But recognition This is human but a crimi- the law is that a change quo the status uniformly nal not follow the behavior does not to be inferred unless the pattern. decide trying to what is legislative body has unmistakably indicated the “same jeop- offense” constitutional a contrary wish. Bush Oceans Interna- ardy purposes Supreme Court of the tional, 211, 207, 1980). 621 F.2d (CA n. 5 developed essentially United States has two Legislature Since did not tinker with different theories. all, no doctrine at there is indi- it, cation of desire to abolish much less Blockburger test, set forth in the an unmistakable one. majority opinion, one. There is the well; applies, perception Neilsen like power That the to define offensеs lies in theories, one when number the Legislature is un- rudimentary, of offenses arise from a continuous transac- once it doubtedly statutory has defined a Nielsen, 176, 9 parte tion. Ex 131 U.S. prescription offense that of the “allowable (1889) S.Ct. 33 L.Ed. 118 states: unit of prosecution” scope determines the protection person tried and prior afforded has been conviction or “[A] [who] acquittal, just convicted for a has Supreme as the crime which various Court United incidents included in it cannot be a States reiterated Sanabria v. ... States, United of these S.Ct. second time tried inci L.Ed.2d 43 being But to put characterize that dents without twice as showing 188,9 statement kind of Id., “deference” for the same offense.” at S.Ct. to Congress that this Court should show to 676.9 Supreme placed upon policies by “That decision of Tex- [of insurance the Su- tion preme was as] followed in this state the law Court.” and was present when the insurance statute was enact- Snow, concept parte This Ex follows 120U.S. ed, and, Legislature if the had desired to (1887) 30 L.Ed. and distin- change Court, promulgated by the law as guishes principle flowing language from the parol it would have no been enacted that Commonwealth, Morey of that constitutes the foundation Mass. contract This should insurance done, ever be valid. Blockburger, and the inference will arise States, supra. See v. United 220 U.S. Gavieres Legislature that the sanctioned the construc- 338, 342, 421, (1911). 31 S.Ct. 55 L.Ed. Ohio, 161, 166, 6, State, Brown See Court of Texas n. decided Wilson v. 2221, 2226, (1977) 97 S.Ct. 53 L.Ed.2d 187 supra, Appeals and the former Court of Supreme which the reсognizes Court that in Quitzow State, supra, “gener- decided providing a test for determining what already al rule” had been discerned from “same offense” Blockburger and Nielsen Law, Bishop (1 536) Mr. on Bishop Criminal stand on footing; different it also notices 2, supra, Jackson v. note at 423.12 protection” “additional supplied by the adhering But if Texas is the state more recently enunciated doctrine of collat- doctrine, must an established Swenson, eral estoppel in Ashe v. 397 U.S. doctrine be abandoned for that reason? 436, 1189, (1970). 90 S.Ct. 25 L.Ed.2d 469 short, years ago dissenting Just two a strenuous In neither has Supreme Court 121, any early opinion abandoned test by formulated in Orosco v. addressing late in the “same offense” which, (Tex.Cr.App.1979) quickly one declaration nor is it abashed that there are notes, striking opin- bears similarities to the two may theories which be considered.10 bar, ion of the Court in the case at did not Finally, the majority pains takes note sway majority my Brothers. What indigenous doctrine is in public persuades interest today? them proposition Texas—a that will not with- are sound policy There considerations stand cursory examination.11 Even the supporting carving doctrine, our same unique terminology used, has been least of which is that people without attribution to Texas: “Merely be- Texas, through grand jury, State of its as- cause one element of single criminal act sisted its prosecuting attorney in draw- persons embraces two things, prosecu- or ing against an indictment an accused for tor may not carve out two offenses conduct, criminal are better served charging the single several elements of the shot,” “taking speak, State its best so to offense counts...,” in different Robinson v. States, United first time (CA10 trying improve ‍‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​‌‍143 F.2d rather than 1944). And before 1876 when Supreme its successive rounds.13 It is a demonstrable Thus, majority opinion the assurance in the “One answerable for a criminal transaction questions the Court will may crime, decide be holden for of whatever with a baffling. “strict nature, construction” attitude is legally which can be carved out of his Nothing remotely in the Sixth Amendment elect, offending. entire He is not to but the Blockburger states either the tests of or Nielsen prosecuting power is.” or the Ashe v. Swenson doctrine of collateral Court Kaufman v. Quoted estoppel, Supreme nor has the Court of the (1913); Tex.Cr.R. 159 S.W. in his they United States even claimed are bom of Eighth (1892), Bishop Edition 1n. Mr. Indeed, “strict construction.” as indicated in supports English the text with citations to four 9, ante, Blockburger note test has been cases, three state cases and one of the opinion traced back to an of the Massachusetts the United States—none from Texas. Supreme Court, nodding acknowledg- with a along way ment Bishop. to Mr. See Burton majority today 13.The and the dissenters States, 344, 381, v. United 202 U.S. 26 S.Ct. State, supra, selectively Orosco v. extract criti- 688, 699, (1906), building 50 L.Ed. 1057 one of Thus, scholarly cism from writers. is not States, supra. blocks of Gavieres v. United surprised that no mention is made of the thrust prosecutor” easy at “the skillful who finds it essentially 11. “Where an offense is and sub manipulate categories so as to “side- one, stantially single the state cannot divide it Kirschheimer, step” jeopardy protections. See punish into two or more offenses and for each Act, Jeopardy, and Double Offense So, separately. it is held that a act or faulting Yale And L.J. may split not be into two or more revealing “same without transaction test” separate offenses ...22 C.J.S. Criminal Law Kirschheimer sees it as too favorable to an accused, 9(1), p. Kansas, separate § “two of disregards also his solution to the fenses cannot be carved out of the one criminal problem: a modified same transaction test with delinquency,” Pierce, 433, 469 State v. 205 Kan. practice amending charging liberalization of instrument, (Kan. 1970). P.2d id., at 534. Bish.New.Cr.Law, 12. 1 791 reiterated the § doctrine:

834 indictment,

tactic, proves practice as Kirschheimer from the to sanction a which cases, for prosecutors some to hold in re- might op- be rendered as an instrument serve facts as well as theories of law to pression to a citizen.”16 when their not suc- advance first efforts do the not make majority of Court does is precisely ceed desired.14 That what as any compelling showing policy such that the courts have said the considerations un- suddenly have become was prevent.15 intended to provided Nor has it principled sound.17 a repeated The “fundamental unfairness of to approve long reason that been which has illegal appar trials for the conduct is rejected oppression.” “as an instrument of ent and has thе courts and the troubled That the Court has “difficul- encountered Golson, legislature,” People 9, supra, note ties” in applying impugns the doctrine designed at 75. The carving doctrine to the doc- members the Court more than unfairness, relieve that fundamental itself, suggests trine efforts at and that though provisions the our con jeopardy consistency in to be made application ought People v. Mullen may stitutions not. See surrendering inability to professed before a hoff, supra, 9, 450, note 33 Ill.2d 211 at judicial job.18 do in Herera Thus, quot 244. in supra, N.E.2d abandoning salutary doctrine extant ing an Jersey opinion from earlier New years more than in one hundred and five approved proposition Court that “it is this the Court majority slender better that go the residue of the offense unpunished than, exposes deprivation to a risk by sustaining the second citizens case, course, dissenting opinion 14. The classic v. Illi 17. At least in Ciucci Orosco v. nois, supra, S.Ct. argued philosophical L.Ed.2d 983 notion (1957). separate Three of four indictments permitted not be to exhibit a that should “[o]ne charging Ciucci with murder of his wife and weapon to and several another commit of- children, tried; respectively, three were against person fenses and be liable for imprisonment, years first resulted in 20 id., offense,” punishment for one at and, years finally, pro second in 45 the third many against per- nor “commit as crimes penalty. Though Supreme duced the death punishment son he wishes without fear of opinion in a Court Per Curiam found no viola crime,” id., except for one at 129. But of process, tion due Illinois was course even traditional tests action, People moved to take remedial v. Gol offense,” e.g., Nielsen, Blockburger “same son, (1965), 32 Ill.2d 207 N.E.2d supra, protection designed provide are Legislature Illinois enacted corrective against punishments “multiple the same measures, Mullenhoff, People v. 33 Ill.2d offense,” Pearce, 395 U.S. North Carolina (1965). 211 N.E.2d 744 711, 717, 2072, 2076, 23 L.Ed.2d 656 S.Ct. 161, 165, (1969); Ohio, Brown 432 U.S. Again Herera, supra: 15. in 2221, 2225, L.Ed.2d 187 competent prose- “It for the state to cute convict for either of offenses said Contrary majority, assertion to the of the transaction, which involved the same dissenting opinion is not to be this intended having one, selected no was the matter if it “urge” may reasonably not be read offense, lesser the state is bound its elec- only one when conviction “should be allowed” tion; and, having party convicted the for the engages in an accused against several vicious acts chosen, proceed against cannot opinion a victim. All the has done greater accused for the other involved the same offense which respect report policy consideration Id., transaction.” S.W. that was identified the work at 944-945. scholarly majority for its writers-cited 16. Herera held that a conviction for assault purposes. accompa- See notes 13 and 14 and subsequent with intent prosecution to murder barred nying findings text That his ante. robbery committed in the same invalid and have his conclusions are unsound robbery transaction. Trial on the indictment yet majority. been dеmonstrated was held after had Herrera been sentenced to proposed by Solutions Kirchheimer and others years seven serve for the assault with intent to problems should at least be examined before id., time,” murder and had out “served his simply applying the doctrine are solved Truly, prosecution the second convic- by cutting it out of the law. tion oppression.” constituted “an instrument of alleged named female he is to have robbed unequaled the annals Texas liberty flight facilitate his “with the intent to own jurisprudence.19 felony, the of a to wit: after commission I dissent. Robbery.” Aggravated victim, TO DENIAL kidnap OPINION DISSENTING OF cum whom we The owner Mae, years thirty-nine LEAVE will call was then TO FILE APPELLANT’S clerk age, employed REHEARING as a at convenience MOTION FOR Areola, Bend Highway store on 288 in Fort CLINTON, dissenting. Judge, County. p.m. At about 11:00 on March original submission the Court found On year of her old with the aid nineteen rape the for aggravated that indictment daughter year girl a seventeen old and and, fundamentally accordingly, defective friend, the just Mae had closed store and 10,170 Cause No. ordered that indictment in ice locking ap- was outside machines when dismissed. On Motion for Rehear- State’s pellant up Producing walked behind her. ing the the relief Court does disturb and, gun, he ordered her to unlock the door us, granted. thus There remains before shortly, the three females the made reenter then, aggrava- respect contentions with to threatening place; brandishing and to use 10,169, robbery, aggrava- ted Cause No. and pistol, teenagers he the lie face the had 10,171. ted kidnapping, Cause No. As to down on the floor while Mae located and them, so anxious to abandon the gave money him all the in the store. Then doctrine, opinion of the Court on telephone he directed Mae to cut the cord rehearing place did not to undertake those and, Mae, kneeling down with told her alleged offenses in factual context order daughter girl lying and the friend to remain to address jeopardy problems. minutes, down for he thirty-five that was

The charging portion the aggravated taking Mae with him and if she her wanted robbery indictment is out set verbatim in or mother alive she better not move she opinion submission, on original and need again. Taking would never see her mother not be reproduced say packages cigarettes here. two two six Suffice aggravation alleged beer, that on or packs about Mae close appellant had her March 1975 appellant did “knowingly eyes, and he led her to a station nearby threaten place in fear wagon. owner bodily injury

imminent and death then roads, done, That he drove around back using and there exhibiting a deadly chattering all the time about sorrowful wit, weapon, to a firearm.” The owner is life,1 until he managed get events in his indicating identified name she a fe- end, at even- stuck an isolated dead where male. tually gunpoint required at he Mae to com- The aggravated kidnapping indictment acts mit round deviate sex and other alleged, her, in terms of indecencies, raped V.T.C.A. Penal he twice. аnd then 20.01(2)(A) 20.04(aX3), § also slept escape. on While he Mae her At § made or 21,1975 about March appellant morning, did inten- five still su- about o’clock in tionally knowingly abduct the same pine wagon, appellant the station original Belatedly majority opinion asserted is the 1. The on submission recounts that “the compelling prior bald statement reason” least insti- two commitments mental abandoning escape and his ultimate from the doctrine is “that it tutions encourages telling slightest first he was crime.” Were there the second one. After Mae suggestion support going proposition, that her to kill her because he knew for that law, daughter appellant majority opinion it, had contacted the re- needs to reveal for crimi- poured nology mightily then out accounts his would lented and be with that advanced Nam, dying in Viet his knowledge brother’s in his arms which somehow has eluded best man, leaving his But, him for own course, wife’s another minds in the field. there is hope expressed he die a would mother’s none. proud on and so could of him—and hero she paranoid vein. on similar following to the custody eyes into without incident statement of

taken two deputy Ohio, sheriffs. law in Brown v. (1977): L.Ed.2d 187

Applying to such a Blockburger “The test is not the situation, original classic submission determining standard whether succes- aggrava Court set aside conviction prosecutions sive impermissibly ted We cited involve kidnapping. Orosco and Ex the same offense. Even if two offenses (Tex.Cr.App.1979) S.W.2d 121 (Tex.Cr.App. parte Curry, sufficiently permit different 1979) sentences, “the proposition the that imposition consecutive suc- ag for both precluded convictions prosecutions cessive will be barred in rape, gravated aggravated and robbery the some circumstances where second where it that offenses re was shown both the prosecution requires relitigation sulted from continuous trans assaultive already by factual issues resolved the * * * against action the same victim.” It was first. it noted that in was found that Orosco a less- today Because we conclude that “where the use and of a exhibition knife greater er included and offense the provided aggravating the circumstances in Blockburger, we need same under offenses, appellant both could not be con repetition proof decide whether victed in both.” Also relied on were Phil required prosecutions the successive lips (Tex.Cr.App. v. 929 against Brown would otherwise entitle 1980) and Tatum 534 S.W.2d 678 protection him to offered the additional (Tex.Cr.App.1976), pointing out that by Ashe Nielsen.” and latter holds that for three of “convictions 166-167, Id., n.6, at 2226.3 at 97 U.S. S.Ct. arising fenses out of a single kidnapping case at bar aggravated In the against a victim violated double necessarily had alleged the State and jeopardy of both clauses Fed State that Mae “with prove appellant abducted Constitutions,” eral and reversed two of the flight the intent his after to facilitate own opinion original three convictions. Our felony, Aggra- wit: the commission of a 15, submission delivered was October 1980 show in- Robbery.” requisite vated Tо rehearing and the motion State’s was alleged, prove tent itself to the State bound ordered and set for filed submission Decem aggravated commission of the 15, 1980; along ber with four other causes Thus, robbery of Mae. the conviction for 12, May opinion 1982 majority on aggravated kidnapping not be had could rehearing State’s motion for abandoned the rob- proving aggravated without the same opted doctrine and for the “same already bery appellant for which had been provided offense” test convicted. appellant Under Nielsen Blockburger Court of the United States in put offense. jeopardy twice in the same States, 299, 180, v. United U.S. S.Ct. Oklahoma, supra. Harris See (1932).2 76 L.Ed. 306 However, dismissing dealing Though unwisely abandons as with the Court doctrine, Judge I Roberts “other double jeopardy matters ... [which] respective dissenting are not have demonstrated pertinent matters to the decision rehearing, case,” motion for opinions p. majority closed its State’s McWilliams, (Tex. proposition usually parte Ex 3. law 1980-1982) Nielsen, Cr.App. parte parte was followed Ex drawn form Ex Mike, (Tex.Cr.App.1980-1982); “where ... 632 S.W.2d 594 S.Ct. 33 L.Ed. 118 Russell, parte (Tex.Cr.App. person Ex has and convicted for crime been tried S.W.2d 596 it, 1982); Davis, parte (Tex.Cr. he cannot be Ex which has various incidents S.W.2d 597 App.1982) Silvas, parte for one of those incidents second time tried and Ex 632 S.W.2d 598 put being jeopardy for 1982)—all (Tex.Cr.App. without twice delivered the ‍‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​‌‍same See, offense,” id., day. 9 S.Ct. at Oklahoma, e.g., Harris 433 U.S. 53 L.Ed.2d 1054 majority is now about create new among confusion the bench bar

pretending Bloekburger provides

only test to determine “whether successive

prosecutions impermissibly the same involve

offense,” by refusing analyze light

jeopardy issues come before us in Nielsen, as well.

To judicial folly, such I must dissent.

ONION, P.J., TEAGUE, J., join. RICONDO, Appellant,

Felix Texas, Appellee.

The STATE of

No. 58970. Appeals Texas, Criminal

En Banc.

Nov.

On En Rehearing Banc June

Case Details

Case Name: Ex Parte McWilliams

Court Name: Court of Criminal Appeals of Texas

Date Published: May 12, 1982

Citation: 634 S.W.2d 815

Docket Number: 64508

Court Abbreviation: Tex. Crim. App.