Ex Parte McWilliams

OPINION ON STATE’S MOTION FOR REHEARING

DALLY, Judge.

The petitioner in this post-conviction habeas corpus proceeding, Art. 11.07, V.A.C.C.P., seeks relief under the carving doctrine. We now abandon the carving doctrine for the compelling reason that it encourages crime. When the carving doctrine may be applied to a situation in which a defendant robs, kidnaps, rapes, and murders his victim, the defendant suffers no more punishment than he would had he committed only one of the crimes. Justice and reason demand prosecution for each of the separate offenses so that a robber will be deterred from kidnapping, raping, and murdering the victim.

The petitioner was convicted of the offenses of aggravated kidnapping, V.T.C.A. Penal Code, Sec. 20.04, aggravated robbery, V.T.C.A. Penal Code, Sec. 29.03, and aggravated rape, V.T.C.A. Penal Code, Sec. 21.03. These offenses were committed in the same criminal episode or transaction.

On original submission, the conviction for aggravated rape was vacated and the indictment ordered dismissed because the indictment was found to be fundamentally defective. We will give no further consideration to that matter which was correctly decided on original submission. The conviction for aggravated robbery was upheld, but the conviction for aggravated kidnapping was vacated and the indictment was ordered dismissed because the conviction for kidnapping violated the carving doctrine. We have now re-examined the doctrine of carving and have concluded that it should be abandoned. Although many opinions of this Court have stated that the carving doctrine is mandated by the Double Jeopardy Clauses of the Constitution of the United States and the Constitution of this State, these opinions are incorrect; the doctrine of carving is not mandated by the Double Jeopardy Clauses.

The dissenters agree that the doctrine of carving is not based in any constitutional or statutory provision; it is based only on tradition—it seemed unfair to prosecute a bailee for stealing both the horse and the saddle. Quitzow v. State, 1 Tex.App. 47 (Ct.App.1976). The dissenters urge that a prosecutor should be allowed only to take his “best shot” and obtain one conviction when a defendant robs, kidnaps, rapes, and murders his victim. However, since the carving doctrine is not supported by consti *823 tutional or statutory provisions, and since this tradition, the doctrine of carving, has now proved unsound, it should be abandoned.

There is no definitive statement of the carving doctrine; it is a nebulous rule applied only in this jurisdiction. Initially, carving was applied when the two offenses charged contained common material elements or when the two offenses required the same evidence to convict. Herera v. State, 35 Tex.Cr.R. 607 , 34 S.W. 943 (1896). This Court added the “continuous act or transaction” test in Paschal v. State, 49 Tex.Cr.R. 111 , 90 S.W. 878 (1905). Since that time the “same evidence” and the “continuous assaultive transaction” tests have been randomly applied. In Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970) defendant’s robbery conviction was held to be in violation of the carving doctrine because the same evidence was used to support both that conviction and defendant’s conviction of assault with intent to murder. Then, in Douthit v. State, 482 S.W.2d 155 (Tex.Cr. App.1972) the court used the continuous assaultive transaction test to determine whether defendant’s two prosecutions for rape (of the same victim) were in violation of the carving doctrine. The court held that the various acts of intercourse, although all part of a continuous assaultive transaction, were sufficiently separated by time and place so that they were not part of a single transaction for carving purposes. The court returned to the “same evidence” test in Robinson v. State, 530 S.W.2d 592 (Tex.Cr.App.1975) to uphold defendant’s convictions of criminal trespass and misdemeanor theft. Significantly, under a “same transaction” analysis, the carving doctrine would have disallowed the second conviction since the theft was committed upon defendant’s trespass onto the University of Houston campus.

That different decisions can be supported by these two theories indicates the lack of precedential value of the carving doctrine decisions. In some cases this Court cites both the Herera “same evidence test” and the Paschal “continuous assaultive transaction” test. See Duckett v. State, supra, and Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976). Neither of these two tests is without scholarly criticism. See Steele, A Review of the Jeopardy Defense in Texas, 16 Texas Tech.Law Review, 393 (1981); Kirchheimer, The Act, the Offense, and Double Jeopardy, 58 Yale L.J. 503 (1949); Twice in Jeopardy, 75 Yale L.J. 262 (1965).

Neither the Federal nor State Constitutions nor Texas statutes prohibit multiple prosecution for two statutory offenses committed in the same transaction. The constitutional provisions speak of double jeopardy in terms of the “same offense” rather than “same transaction.” The Supreme Court of the United States in Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1978) stated that the power to define offenses lies in the legislature:

“[Ojnce Congress has defined a statutory offense by its prescription of the ‘allowable unit of prosecution’ that prescription determines the scope of protection afforded by a prior conviction or acquittal.”

This deference which the Supreme Court has shown to the United States Congress should also be shown by this Court to the Texas Legislature. Not only has the legislature clearly defined and separated criminal offenses; it has also made known, directly and indirectly, its intent insofar as multiple prosecutions are concerned. In Chapter 3 of the Texas Penal Code (1974) multiple prosecutions of property offenses are considered. It appears the legislature intended to exclude other offenses from this provision, and to allow prosecutions for each offense occurring within one criminal transaction. 1 Prosecutions for each offense, other than property offenses occurring in one criminal transaction are to be prohibited only when in violation of the double jeopardy clauses of the Federal and State Constitutions.

*824 The difficulties involved in the application of the carving doctrine are numerous. Any sequence of conduct can be labelled a “transaction" and this Court has construed the term in an inconsistent manner. Many cases decided under the carving doctrine are in conflict. In one case the court upheld defendant’s three convictions of sodomy with the same person on the same occasion, Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974); in another case the court reversed two of defendant’s three convictions for indecent exposure, fondling, and statutory rape, also involving the same person on one occasion. Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974). The court reasoned that in the first case each offense was separate, but in the second case, it held that even though the offenses are separate under the law, they nonetheless were a single transaction because they were proved by the same acts. Id. Successive prosecutions for aggravated robbery and aggravated rape on one victim on one occasion have been found contrary to the carving doctrine, yet successive prosecutions for rape and sodomy of one victim on the same occasion have been held permissible. See Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1978) and Ex parte Joseph, 558 S.W.2d 891 (Tex.Cr.App.1977). The doctrine of carving is unsound and its application has been erratic.

The doctrine of carving was court made; constitutions and statutes make no provision for such a doctrine. Since we are abandoning the carving doctrine, we will now decide double jeopardy questions under the strict construction of the Constitutions of the United States and of this State. The prohibitions against being twice put in jeopardy for the same offense requires a test for defining the “same offense.” The Supreme Court of the United States has provided such a test:

“[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980); Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980). The Blockburger test is satisfied if each statutory offense requires the proof of a fact that the other does not. At trial there may be a substantial overlap in the proof of each offense; however, it is the separate statutory elements of each offense which must be examined under this test. Brown v. Alabama, 619 F.2d 376 (5th Cir. 1980).

The Blockburger rule will not preclude two convictions here; each statute requires proof of a fact which the other does not. See V.T.C.A. Penal Code, Secs. 20.04 (Aggravated Kidnapping) and 29.03 (Aggravated Robbery).

Opinions of the Supreme Court after Blockburger have dealt with other double jeopardy matters. See Brown v. Ohio, supra; Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977); Illinois v. Vitale, supra; Whalen v. United States, supra, but the matters considered in those cases are not matters pertinent to the decision in this case.

Since there is no double jeopardy violation in the convictions for aggravated kidnapping and aggravated robbery, the State’s Motion for Rehearing is granted; the relief sought will be denied.

It is so ordered.

. Compare Chapter 3, Multiple Prosecutions and Double Jeopardy, Texas Penal Code, A Proposed Revision, State Bar Committee on Revision of the Penal Code, Final Draft (October 1970) with Chapter 3, Multiple Prosecutions, V.T.C.A. Penal Code (1974).