# Ex Parte Davis

> Court of Criminal Appeals of Texas · February 15, 1967 · 412 S.W.2d 46

URL: https://www.frixlaw.com/law-library/cases/9683080

## Case

- **Full name:** Ex Parte Melvin Carl DAVIS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 15, 1967
- **Citations:** 412 S.W.2d 46
- **Precedential status:** Published
- **Opinion:** Dissent by Woodley
- **Judges:** McDonald, Woodley, Onion
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Ex Parte Hill, 1975 Tex. Crim. App. LEXIS 1103 (1975).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683080

## Opinion text

WOODLEY, Judge
(dissenting).
In the opinions prepared by him which are today overruled, the writer has fully expressed his views regarding a life sentence for an offense such as assault with intent to rape; attempt to rape; burglary of a private residence, and robbery with firearms, where the statute does not in terms provide a life sentence as punishment.
The majority today announce i new rule of law which is directly contrary to the uniform decisions of this Court over a period of more than twenty years, and do so upon authority of the very decision which this Court considered, discussed and declined to follow in Daugherty v. State, 146 Tex.Cr.R. 303 , 174 S.W.2d 493 , decided in 1943.
To reach the conclusion that a life sentence may be imposed as punishment for the offense of assault with intent to rape, the majority find it necessary to overrule opinions written by Judges Graves, Hawkins, Beauchamp, Davidson and the writer, the earliest of which is Ex Parte Erwin, 145 Tex.Cr.R. 504 , 170 S.W.2d 226 , decided in 1943, and the most recent being Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675 .
The majority have not overlooked their holding as to the punishment for a second conviction for the offense they now say is punishable in ordinary cases by confinement in the penitentiary for life.
The writer’s views as to the applicability of Art. 62 P.C. in such cases is set out in his dissenting opinions in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330 ; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187 ; and Sellars v. State, Tex.Cr.App., 401 S.W.2d 835 .
Unless the majority is prepared to hold that a life sentence is no longer the highest punishment that may be assessed for a felony less than capital, they find themselves in the position of saying that a life sentence may be assessed for assault with intent to rape in ordinary cases but on a second or other subsequent conviction for such offense Art. 62 P.C. fixes a definite punishment of 99 years.
To the majority opinion and to the application of the new construction of statutes announced therein retroactively to uphold a *50 life sentence for assault with intent to rape pronounced on February 2, 1962, I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683080. Public record. Not legal advice.