# Ex Parte McWilliams

> Court of Criminal Appeals of Texas · May 12, 1982 · 634 S.W.2d 815

URL: https://www.frixlaw.com/law-library/cases/9660169

## Case

- **Full name:** Ex Parte Stephen A. McWILLIAMS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 12, 1982
- **Citations:** 634 S.W.2d 815; 1982 Tex. Crim. App. LEXIS 891
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Tom G. Davis
- **Cited by:** 200 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660169

## How later opinions describe it (automated extraction)

- recognizing “[j]ustice and reason demand” that defendant should be subject to separate convictions and harsher punishment if he “robs, kidnaps, rapes, and murders his victim” than if he “committed only one of the crimes”
- holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions
- noting that ''[t]he dictum in Day that the statute 'defines lesser included offense in terms of the facts of the case' has been misinterpreted to mean the evidence in the case. Under this misinterpretation, the offense of unlawfully carrying a weapon could be a lesser included…

## Opinion text

ROBERTS, Judge,
dissenting.
A statute requires that, “The Court of Criminal Appeals, in each case decided by it, either on appeal or on review, shall deliver a written opinion setting forth the reasons for such decision.... ” V.A.C.C.P., Article 44.24(d). Although this case is not on appeal or on review, it may be “heard as ... an appeal,” 1 and the court seems to have chosen so to hear it, for the court has deliv *825 ered a written opinion setting forth six reasons for its decision. It might as well have refrained from doing so, for none of the reasons can justify its decision to discard the carving doctrine.
The court’s first “compelling reason” is deterrence. It says that, under the carving doctrine, “a defendant [who] robs, kidnaps, rapes, and murders his victim ... 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,” to deter such episodes. This seems to be more a rhetorical flourish than a compelling reason. A person who robbed, kidnapped, raped, and murdered his victim could be punished by death, regardless of the carving doctrine; 2 it is not clear, even in the lights of justice and reason, that the prospect of an additional term of imprisonment would be a marginally greater deterrent than the prospect of death.
Even if murder is removed from the court’s list of horrible hypotheticals each of the remaining offenses is punishable by confinement for life. 3 It is unlikely that many robbers who are not deterred by the prospect of one life sentence will be deterred from abducting their victims by the prospect of two life sentences; it seems more likely that robbers expect not to be caught at all. If Texas had shorter, determinate sentences, it might make sense to say that multiple punishments are needed to reflect the seriousness of a criminal episode that comprised multiple offenses. But Texas’ law provides a very wide range of punishment, with a very high maximum, for each felony. Therefore, the sentencer is allowed to take into account all the aggravating circumstances of the criminal episode, and to set punishment at the high end of the scale for a single offense. 4
Not only are multiple punishments unneeded in most cases, they are unlikely to be imposed frequently. If the court’s hypothetical defendant is indicted for robbery, kidnapping, and rape, he may insist on separate trials. After obtaining a conviction and a long sentence for one offense in an episode, a prosecutor will not often choose to expend his (and the court’s and the witnesses’) time and money in a sequence of prosecutions for the other offenses in the episode. The court’s first, “compelling” reason cannot withstand scrutiny.
The court’s second reason is that “the doctrine of carving is not mandated by the Double Jeopardy Clauses.” This is only half true. The court is correct in holding that the United States Constitution does not require the carving doctrine, but it is wrong about the Texas Constitution.
The Supreme Court has not held explicitly that the Fifth Amendment does not require the carving, or “same transaction,” test, but it has rejected opportunities to adopt the test so often that the point is sufficiently clear. See, e.g., Brown v. Ohio, 432 U.S. 161, 170 , 97 S.Ct. 2221, 2227 , 53 L.Ed.2d 187 (1977) (Brennan, J., concurring); Thompson v. Oklahoma, 429 U.S. 1053 , 97 S.Ct. 768 , 50 L.Ed.2d 770 (1977) (Brennan, J., dissenting to denial of certio-rari) (collecting ten other denials of certio-rari); Harris v. Washington, 404 U.S. 55, 57 , 92 S.Ct. 183, 184 , 30 L.Ed.2d 212 (1971) (statement of Douglas, Brennan, and Marshall, JJ.); Ashe v. Swenson, 397 U.S. 436, 448 , 90 S.Ct. 1189, 1196 , 25 L.Ed.2d 469 (1970) (Brennan, J., concurring); Abbate v. United States, 359 U.S. 187, 196 , 79 S.Ct. 666, 671 , 3 L.Ed.2d 729 (1959) (separate opinion of Brennan, J.); Hoag v. New Jersey, 356 U.S. 464, 477 , 78 S.Ct. 829, 837 , 2 L.Ed.2d 913 (1958) (Douglas, J., dissenting). See also Pennsylvania v. Campana, 414 U.S. 808 , 94 S.Ct. 73 , 38 L.Ed.2d 44 (1973) (vacating state court judgments in which plurality had held that Fifth Amendment required “same transaction rule,” and remanding for consideration of whether judgments were *826 based on state or federal constitutions, or both). 5 Recent holdings of this court that a violation of the carving doctrine is a violation of the Fifth and Fourteenth Amendments, are wrong.
States may give greater protections to individual rights than the mínimums required by the Fourteenth Amendment, however. Cooper v. California, 386 U.S. 58, 62 , 87 S.Ct. 788, 791 , 17 L.Ed.2d 730 (1967). It long has been held that the double jeopardy provision in the Texas Bill of Rights 6 does just that.
In Hirshfield v. State, 11 Tex.App. 207 , 214 (1881), the court considered the question, “What is meant by the term ‘same offense’ [in the Texas Double Jeopardy Clause]?” After discussing the doctrines of former acquittal and former conviction, the court pointed out that “it must be borne in mind that there is another principle applicable to this subject of jeopardy, which is quite distinct from that which obtains in pleas of former conviction or acquittal generally. This is the doctrine of carving....” Id. at 215. Carving has had a constitutional basis for a century. The court is simply wrong in saying that it was “initially” applied in 1896 and that it is “not supported by ... constitutional provisions.” The court is correct in recognizing that carving is not a federal doctrine, but it is only pretending that carving is a mere “tradition” which is not rooted in the Texas Constitution.
The court’s third reason for rejecting carving is that it is a “rule applied only in this jurisdiction.” This, too, is wrong insofar as it implies that no other jurisdiction uses a “same transaction” rule. As of 1965, at least five states used such a rule, 7 and at least one other state has adopted such a rule since. 8 Exhaustive research might discover others.
The court’s fourth reason for its decision is that the carving doctrine has been stated and applied inconsistently. This is undeniably true (although not all of the court’s examples actually show inconsistency). 9 But this reason can justify only a reform of the doctrine so that it will be stated and applied more consistently. Judge Clinton’s opinion, below, discusses this at length, so I shall pass on to the court’s fifth reason: legislative intent.
The court claims (in footnote 1 and the accompanying text) that the legislative rejection of a proposal to reform the carving doctrine in Chapter 3 of the proposed penal code indicates an intent to abolish that doctrine. The logic is not apparent. One would suppose that a legislative rejection of a reform would indicate the opposite: the Legislature’s unwillingness to change this well established rule of law.
The court’s sixth reason is strict construc-tionism. The court points out that “the constitutional provisions speak of double jeopardy in terms of the ‘same offense’ rather than ‘same transaction,’ ” and concludes, “The doctrine of carving was court made; constitutions and statutes make no provision for such a doctrine.... [W]e will now decide double jeopardy questions under the strict construction of the Constitutions of the United States and of this State”; that is, by the Blockburger rule.
Close inspection of the double jeopardy clauses will not reveal the Blockburger rule any more than it reveals the carving rule. The one is exactly as “court made” as the *827 other. The role of this court is to fashion such rules so that the broad commands of the constitution can have specific applications. How can one strictly construe terms such as “due process,” “equal protection,” or “unreasonable searches and seizures”? As a legal historian has said, “Strict con-structionism can be a balm for the judicial conscience, but not much more. The imprecision of the constitutional text makes strict constructionism a faintly ridiculous usage .... It is a form of judicial laissez-fair-eism by which the judge ... defers to other branches of government, 10 or to the states, or to law-enforcement agencies, as the case may be.” L. Levy, Against the Law, 30-31 (1974).
Section 14 of the Texas Bill of Rights says, “No person, for the same offense, shall be twice put in jeopardy of life or liberty....” Like the corresponding clause in the Fifth Amendment, it contains “deceptively plain language [which] has given rise to problems both subtle and complex.... ” Crist v. Bretz, 437 U.S. 28, 32 , 98 S.Ct. 2156, 2159 , 57 L.Ed.2d 24 (1978). The carving doctrine is a solution to the problems of deciding when a person may be subjected to multiple trials or punishments for closely related acts; the Blockburger test is part of a different approach to one of these problems. The suggestion that one is based on a stricter construction of the constitutions than the other is false; there cannot be a strict construction of the constitutional term, “same offense.”
It is worth repeating that the Blockbur-ger test, adopted today, is not a substitute for the carving doctrine. To begin with, Blockburger will not resolve the question of whether multiple trials may be had (as distinguished from multiple punishments which are imposed in only one trial). Brown v. Ohio, 432 U.S. 161 , 166 n. 6, 97 S.Ct. 2221, 2226 , 53 L.Ed.2d 187 (1977). Even in the area of multiple punishments Blockburger is not the tool of mechanical and consistent adjudication for which the court seems to yearn.
“[The] assumption that Blockburger defines the scope of the double jeopardy clause misconceives the purpose and nature of that rule: Blockburger is not a constitutional ‘litmus test’ for determining whether a particular sentence violates the double jeopardy clause. Rather as the Supreme Court made clear in Whalen [v. United States, 445 U.S. 684 [ 100 S.Ct. 1432 , 63 L.Ed.2d 715 ] (1980) ], Blockbur-ger is ‘a rule of statutory construction ... relied on ... to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.’ 445 U.S. at 691 [ 100 S.Ct. at 1438 ] (footnote omitted). * * [T]he essential inquiry is Congress’ intent. See 445 U.S. at 687 , 100 S.Ct. at 1436 .” United States v. Hawkins, 658 F.2d 279, 287 (5th Cir. 1981).
The Texas Legislature’s intent is much harder to find than Congress’s, for the sources have been nearly non-existent, 11 and are obscure even today. 12
It is worth mentioning, too, that the court is creating a collision between the Blockburger analysis and its own analysis of lesser included offenses. As the court holds today, Blockburger regards as irrelevant the fact that “[a]t trial there may be a substantial overlap in the proof of each offense; ... it is the separate statutory elements of each offense which must be examined under this test.” This court’s analysis of lesser included offenses is the opposite; at least part of the time, on the facts of the case, an offense was a lesser included offense even though its elements were not strictly encompassed by the offense alleged. See, e.g, Christiansen v. State, 575 S.W.2d 42, 44 (Tex.Cr.App.1979) *828 (under some circumstances, issuance of a bad check may be a lesser included offense of theft); Hazel v. State, 534 S.W.2d 698, 700-701 (Tex.Cr.App.1976) (unlawful carrying of weapon is lesser included offense of unlawful possession of firearm by felon, even though former offense requires proof of “carrying,” which latter offense does not). 13 Until these holdings are reconciled, the law will be that, even though an offense is a lesser included offense of another under state law, a person may be convicted and punished for both under Blockburger. This will be constitutionally interesting.
The court discards an accepted doctrine for no good reason, in exchange for a doctrine that will involve more difficulties than it now admits. I am not convinced that the grass is greener on the Blockburger side of the fence. I dissent.
ONION, P. J., and TEAGUE, J., join in this opinion.
. V.A.C.C.P., Art. 11.07, Sec. 3.
. V.T.C.A., Penal Code, Sec. 19.03(a)(2).
. V.T.C.A., Penal Code, Secs. 20.04(b) (aggravated kidnapping), 21.03(c) (aggravated rape), and 29.03(b) (aggravated robbery).
.This same purpose underlies V.T.C.A., Penal Code, Sec. 12.45 (“Admission of Unadjudicated Offense”).
. On remand the plurality abandoned its Fifth Amendment holdings and the court adopted the “same transaction” rule as state law. Commonwealth v. Campana, 455 Pa. 622 , 314 A.2d 854 (1974).
. Tex.Const., Art. I, Sec. 14.
. 75 Yale L. J. 262, 270 n. 34 (1965) (Alabama, Georgia, New Jersey, Oklahoma and Texas).
. See n. 5, supra.
.As an example of carving cases that are in conflict, the court cites Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974), comparing it with Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974). A close reading of the Lee opinion reveals that the carving doctrine was not applied at all; the case seems to have been disposed of on federal, Blockburger—style analysis. Lee does not illustrate inconsistent application of carving. It may illustrate, instead, a confusing of carving with Blockburger.
. Compare the court’s opinion, ante: “The deference which the Supreme Court has shown to the United States Congress should also be shown by this Court to the Texas Legislature.”
. Gillette v. State, 588 S.W.2d 361, 364, 368 (Tex.Cr.App.1979) (Roberts, J., dissenting).
. See Ex parte Byers, 612 S.W.2d 534, 536 (Tex.Cr.App.1980), which was based on four untranscribed tape recordings.
. These cases derive from Day v. State, 532 S.W.2d 302, 315-316 (Tex.Cr.App.1976), in which the court construed V.A.C.C.P., Art. 37.-09(1): “An offense is a lesser included offense if ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged .... ” The dictum in Day that the statute “defines lesser included offense in terms of the facts of the case” has been misinterpreted to mean the evidence in the case. Under this misinterpretation, the offense of unlawfully carrying a weapon could be a lesser included offense of murder if the evidence showed that the alleged murderer was carrying a weapon. The correct construction of Day (and of the statute) is that the term “facts” refers to “factual elements.” By this construction, the lesser included offenses in a case can be determined from the four corners of the indictment, which alleges the “facts required to establish the commission of the offense,” as distinguished from mere matters of evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660169. Public record. Not legal advice.