fellatio, anal penetration, and the defendant placing his mouth on the victim’s sexual parts constituted separate and distinct offenses
How later courts described this case
- fellatio, anal penetration, and the defendant placing his mouth on the victim’s sexual parts constituted separate and distinct offenses
- hearsay statements contained in a presentence report do not violate a defendant's right to confrontation
- "[A] court is not required to disregard hearsay statements in a pre-sentencing report."
Written by the judges who cited it.
The opinion
MORRISON, Judge
(concurring in part and dissenting in part).
Recently in Ellis v. State, Tex.Cr.App., 502 S.W.2d 146 , we said:
“Although the pleas of double jeopardy, and carving, were not raised in the trial court or in this court, they involve a violation of both the State and Federal Constitutions, and under the above stated facts require our review ‘in the interest of justice.’ See Art. 40.09, § 13, V.A.C. C.P.; Duckett v. State, Tex.Cr.App., 454 S.W.2d 755 ; Price v. State, Tex.Cr. App., 475 S.W.2d 742 . Cf. Shaffer v. State, Tex.Cr.App., 477 S.W.2d 873 .”
With this in mind I requested the Clerk of the trial court to send to this Court the “deposition” which was considered by the trial court in assessing punishment. An examination thereof clearly reveals that all three acts which were the basis for the prosecution in these three cases occurred between the same parties, at the same place, in the same morning. The doctrine of carving must be given application.
I would affirm the judgment of conviction in cause #48,083 and reverse and dismiss the prosecution in causes #48,084 and #48,085.
I, therefore, concur in the affirmance of cause #48,083, and dissent to the affirmance of causes #48,084 and #48,085.
ONION, P. J., joins in this opinion.