Appendix — McWilliams v. Texas

Sl | Cee See ee

FIL

ED

ser 19 1962

No. a J ge

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1982

EX PARTE STEPHEN A. McWILLIAMS

ON WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Robert L. Ketchand

Butler, Binion, Rice, Cook & Knapp

1747 Pennsylvania Ave., N.W.

Suite 900

Washington, D.C.

(202) 466-6900

Counsel of Record for Petitioner

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1982

EX PARTE STEPHEN A. MCWILLIAMS

ON WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

¢! Robert L. Ketchand

Butler, Binion, Rice, Cook & Knapp

1747 Pennsylvania Ave., N.W.

Suite 900

Washington, D.C.

(202) 466-6900

Counsel of Record for Petitioner

I.

II.

Iit.

vIitl.

B1.6

INDEX TO

APPENDIX

Opinion (of Oct. 15, 1980).

Opinion on state's motion for

rehearing.

Opinion dissenting to denial of

leave to file second motion for

rehearing.

Denial of leave to file second

motion for rehearing.

Petition for Writ of Habeas Corpus.

First Supplemental Petition for

Writ of Habeas Corpus.

Second Supplemental Petition for

Writ of Habeas Corpus.

Second Motion for Rehearing.

I. OPINION (of Oct. 15, 1980).

I. OPINION

Ex Parte Stephen McWilliams, No. 64,508

This is an application for writ of

habeas corpus filed pursuant to Art.

11.07, V.A.C.C.P. On July 24, 1975,

petitioner entered pleas of guilty to the

offenses of aggravated robbery, aggrava-

ted rape and aggravated kidnapping.

Punishment in each cause was assessed at

thirty years. Petitioner now raises

numerous contentions concerning the

validity of each of these convictions.

Initially, he maintains that his

indictment for aggravated rape is fun-

damentally defective for failure to

allege a culpable mental state. The

indictment alleges in pertinent part that

petitioner did then and there:

“unlawfully, by force and

threats,and without the consent

of Mrs. J L , ravish and

have sexual intercourse with

Mrs. J L , a female not

then and there the wife of the

said Stephen McWilliams, and the

said Stephen McWilliams did

compel submission by Mrs.

L to said ravishmert and j

sexual intercourse by threaten-

ing to inflict death and serious

bodily "eet to — said

Mrs. J

In Ex Parte Smith, 571 S.W.2d 22,

this Court held that in order to estab-

lish criminal responsibility for the

offense of rape, the State must allege

and prove that the defendant acted

intentionally, knowingly, or reckless)

V.T.C.A. Penal Code, Sec. 6.02. When a

culpable mental state is an element of

an offense and the indictment fails to

allege that element, the indictment is

fundamentally defective and will not

support a conviction. See, Zachery v.

‘State, 552 S.W.2d 136.

We find that petitioner's indictment

for aggravated rape fails to allege an

offense and that the conviction based

thereon is void. The relief sought as to

the conviction in Cause No. 10,170 in the

23rd Judicial District Court of Fort Bend

County is granted and the indictment is

ordered dismissed.

Petitioner next contends that he

was subject to double jeopardy and the

carving doctrine was violated when he was

convicted upon the same evidence for two

offenses *rising out of the same con-

tinuous assaultive transaction involving

a single victim.

The record reflects that on

March 21, 1975, petitioner robbed at

gunpoint the clerk of a grocery store in

Arcola. Immediately thereafter, peti-

tioner forced the clerk to leave the

store with him in an automobile.

In two recent cases, we have held

e that the carving doctrine precluded

convictions for both aggravated robbery

and aggravated rape, where it was shown

that both offenses resulted from one

continuous assaultive transaction against

the same victim. Orosco v. State, 590

S.W.2d 121; Ex Parte Curry, 590 S.W.2d

712. In Orosco, it was found that where

a3@

ee — rr rrtS::—CSrs:”:”:“‘ié = =,”

the use and exhibition of a knife pro-

vided the aggravating circumstances in

both offenses, appellant could not be

convicted in both. Likewise, in Phillips

v. State, 597 S.W.2d 929 it was held that

convictions for both aggravated kid-

napping and aggravated sexual abuse

resulting from one continuous assaultive

transaction against the same victim

violated the carving doctrine. Lastly,

in Tatum v. State, 534 S.W.2d 678, it was

held that convictions for three offenses

arising out of a single transaction

against a single victim violated the

double jeopardy clauses of both the State

and Federal Constitutions, and required

A reversal of two of the three convictions.

We find that the evidence supports

the trial court's findings that one of

petitioner's convictions was obtained in

violation of the carving doctrine. Since

the judgment in each cause was entered on

the same day, we will presume that the

judgment in the lowest cause number was

~~

ee

entered first. See, Ex Parte Calderon,

508 S.W.2d 360. The relief sought as to

the conviction in Cause No. 10,171 in the

23rd Judicial District Court of Fort Bend

County is granted. Petitioner's convic-

tion for aggravated kidnapping is set

aside. |

The remainder of petitioner's

contentions will be addressed only as

they relate to his aggravated robbery

conviction. |

Petitioner next raises three con-

tentions concerning his aggravated

robbery indictment. He maintains that

the indictment is defective because it

fails to allege a culpable mental state

and ownership. He further argues that

the indictment is insufficient because it

does not allege that the person robbed

was the same person assaulted.

Petitioner's indictment for aggra-

vated robbery alleges in pertinent part

that he did then and there:

"unlawfully, and intentionally

take steal, exercise control

over, and carry away from

Mrs. J L , hereinafter

called owner, corporal personal

property, to wit, money, with

intent to deprive said owner of

said property and without the

effective consent of said owner,

and said defendant, in the

course of committing said theft

and with intent to take, steal,

obtain, and maintain control of

said property, did then and

there intentionally knowingly

threaten and place the said

owner in fear of imminent bodily

injury and death by then and

there using and exhibiting a

deadly weapon, to wit, a fire-

arm."

The allegation that petitioner acted

"intentionally" is sufficient to allege a

culpable mental state under Sec. 6.02,

supra. There is no requirement that a

robbery indictment allege ownership. Ex

Parte Lucas, 574 S.W.2d 162; Servance v.

State, 537 S.W.2d 753. Lastly, the

victim of the robbery and the victim of

the underlying theft need not be the same

person. See, Watson v. State, 532 S.W.2d

619.

We find that the indictment is

sufficient to allege an offense under

V.T.C.A. Penal Code, Sec. 29.03.

In five related contentions, peti-

tioner challenges the sufficency of the

evidence to support his aggravated

robbery conviction. This Court has

repeatedly held that a habeas corpus

proceeding may not be used to colla-

terally attack the sufficiency of the

evidence to support a conviction. See,

Ex Parte Dunn, 571 S.W.2d 928; Ex Parte

Dantzler, 571 S.W.2d 536. These con-

tentions are without merit. 1/

Petitioner next contends that his

plea of guilty to aggravated robbery was

involuntary because he was told that if

he did not plead guilty, he would

receive a life sentence. The record

reflects that during the guilty plea

proceeding, the trial court admonished

petitioner pursuant to Art. 26.13,

V.A.C.C.P. The fact that petitioner

entered a plea of guilty in order to

avoid a greater punishment does not

entitle him to habeas corpus relief.

See, Ex Parte Thomas, 474 S.W.2d 238.

This contention is without merit.

Petitioner next complains of a

one-on-one showup which was conducted

shortly after his arrest. In Fierro v.

State, 437 S.W.2d 833, it was held that

a plea of guilty, if voluntarily and

understandingly made, is conclusive as

to the defendant's guilt and waives all

non-jurisdictional defects. An error to

a pretrial identification procedure does

not constitute a jurisdictional defect.

We find that petitioner's plea of guilty

waived error, if any, in the showup

conducted after his arrest.

Petitioner next contends that his

plea of guilty was the result of inef-

fective assistance of counsel. Among

other things, he maintains that his

attorney coerced him into pleading

guilty, refused to contact certain

witnesses, and “offered no advice or

legal representation."

In a post-conviction habeas corpus

action, the petitioner has the burden of

proof. Ex Parte Sander, 588 S.W.2d 383.

An allegation of ineffective counsel will

be sustained only if it is firmly founded

and the record affirmatively demonstrates

counsel's alleged ineffectiveness.

Harrison v. State, 552 S.W.2d 151.

The trial court held an evidentiary

hearing in connection with petitioner's

application. At that hearing, there was

no evidence offered relative to the claim

of ineffective assistance of cou..sel. In

the absence of such evidence, petitioner

has failed to discharge his burden of

having the record affirmatively demon-

strate the alleged ineffectiveness of

counsel's representation. This conten-

tion is without merit.

Finally, petitioner attacks his

aggravated robbery conviction on the

. basis that the trial court failed to

conduct a hearing on his competency to

stand trial. He maintains that there

was sufficient evidence before the trial

court in 1975 to raise a bona fide doubt

as to his competence to stand trial and

that a competency jury should have been

impaneled.

In the instant case, the trial court

was relieved of any responsibility to

e hold a pretrial hearing by virtue of

petitioner's announcement of ready and

entry of a guilty plea without any

suggestion of incompetency. See, Morales

v. State, 587 S.W.2d 418; Thomas v.

State, 562 S.W.2d 240.

The record reflects that prior to

accepting his pleas of guilty, petitioner

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_——— ee eee

informed the court that he had been

confined in two mental institutions in

the State of New York. From January

until September of 1972, he was at «he

Mattewan State Hospital in Beacon, New

York. With regard to this confinement,

the record from the guilty plea reflects

as follows:

“THE COURT: ...

"All right, and during the time

that you were in there, did you

know that you were in that place?

"THE DEFENDANT: Not at the

beginning.

“THE COURT: What did you have, a

lick on your head or a crack-up

or nervous breakdown, or what

happened?

"THE DEFENDANT: I don't remember

anything."

Petitioner was then transferred to

the Utica State Hospital in Utica, New

York. In describing his treatment and

departure from this institution, peti-

tioner stated as follows:

"THE COURT: And what did they do

by way of treatment or consulta-

tion?

"THE DEFENDANT: Gave me medica-

tion and saw a doctor one time.

"THE COURT: Saw a doctor one

time and gave you medication?

"THE DEFENDANT: Yes.

"THE COURT: Then they released

you in about a week?

"THE DEFENDANT: I left.

"THE COURT: You escaped?

"THE DEFENDANT: Yes.

"THE COURT: Ran off?

"THE DEFENDANT: Yes."

The trial court then examined a

report from Dr. Benjamin Sher dated

May 24, 1975. Following a request from

the district attorney, Dr. Sher examined

petitioner in an effort to determine his

competency to stand trial. As a result

of this examination, Dr. Sher concluded

that petitioner was competent to stand

trial. A portion of the report stated,

"Mr. McWilliams stated that he spent some

time in the Mattewan Hospital in Beacon,

New York. He stated that he was sent to

the hospital by the court.”

Petitioner's trial attorney then

stated that in his opinion, petitioner

was competent to stand trial. The court

then accepted his guilty pleas.

Art. 46.02, Sec. 2(b), V.A.C.C.P.

provides as follows:

"If during the trial evidence of

the defendant's incompetency is

brought to the attention of the

court from any source, the court

must conduct a hearing out of

the presence of the jury to

determine whether or not there

is evidence to support a finding

of incompetency to stand trial."

In Pate v. Robinson, 383 U.S. 375

(1966), the Supreme Court interpreted the

due process clause to require that a

criminal defendant be afforded an ade-

quate hearing om competency to stand

trial whenever the trial judge becomes

aware of a bona fide doubt concerning

that defendant's competence. In order to

find a Pate violation, it must be shown

that before or during trial, evidence of

such incompetence was brought to the

court's attention. See, Ex Parte Hagans,

558 S.W.2d 457.

In Ex Parte Halford, 536 S.W.2d 230,

the Court found that the trial court

should have conducted a competency

hearing. In that case, the petitioner's

mother testified that he had a long

history of mental illness and irrational

behavior following a head injury as a

child. He was shown to have been pre-

viously committed to two mental insti-

tutions. Three doctors testified that

although petitioner was a "sociopathic

personality” he was nevertheless legally

sane. The petitioner's trial attorney

stated that petitioner's ability to

communicate was “adequate.” We found

this evidence sufficient to raise a bona

fide doubt as to competence. Ex Parte

Halford, supra at 232.

Likewise, in Ex Parte Long, 564

S.W.2d 760, the petitioner maintained

that the court should have conducted a

competency hearing. In Long, several of

the petitioner's relatives stated that

his conduct was "strange and abnormal.”

Two friends described him as "insane."

However, three doctors testified that the

petitioner was of “sound mind" at the

time of trial. We found the evidence

sufficient to create a bona fide doubt as

a to competence and that the trial court

should have conducted a separate hearing

to determine the issue.

Previous admission to a mental

hospital coupled with an explanation does

not require a separate hearing to deter-

mine competency. Cruz v. State, 530

S.W.2d 817; Bledsoe v. State, 519 S.W.2d

646. In Ainsworth v. State, 493 S.W.2d

517, no error was found in the trial

e court refusing to impanel a competency

jury although it was discovered mid-trial

that the defendant was an escapee from

Rusk State Hospital. It was found that

an earlier diagnosis that the defendant

was mentally ill meant little when

contrasted with a present evaluation by

his own counsel, the trial court and a

21S

_— eee

psychiatrist on the question of present

competency. Ainsworth v. State, supra at

§22.

In the instant case, the only

matters which could have raised the

question of competency at the time of

trial was information concerning

petitioner's two prior commitments at

mental institutions. When questioned as

to the reason for his commitment,

petitioner responded, "I don't remember

anything." He was shown to have escaped

from an institution approximately two and

one-half years before the instant

offenses. This evidence must be compared

to Dr. Sher's examination conducted some

. two months before trial in which he

concluded that petitioner was competent.

Petitioner's testimony at the time of the

guilty pleas was coherent and evidenced

an understanding of the proceedings.

Lastly, after observing the conduct and

demeanor of petitioner at the time of

trial, the court found him to be

competent.

. -16-

OO ee

Petitioner relies extensively upon

evidence introduced at the evidentiary

hearing held in connection with this

application to support his contention

that a competency hearing should have

been held at the time he pled guilty.

The evidentiary hearing was held approx-

imately four and one-half years after

trial.

The record from the evidentiary

hearing reveals four previous suicide

attempts by petitioner. It was further

shown that at the time petitioner was

committed to Mattewan Hospital, he had

been charged with multiple criminal

offenses in New York and that the County

. Court of Schenectady County found that

"as a result of mental disease or defect

{he] (petitioner) lacks capacity to

understand the proceedings against him or

to assist in his own defense." There is

no showing that this determination has

ever been set aside. Upon his transfer

to Utica Hospital, petitioner's diagnosis

_

was as follows: “psychotic depressive

reation; personality disorder; paranoid,

and drug dependence." Following his

escape from Utica, his condition was

stated as “unimproved.” Following his

arrest for the instant offenses in Fort

Bend County, petitioner was described as

a “chronic schizophrenic.” Lastly, in an

affidavit dated January 17, 1980, Lucian

Jones, a clinical psychologist, states

that upon the basis of this examination,

he is of the opinion that petitioner was

incompetent at the time he pled guilty in

1975.

There is no showing that any of the

evidence from the evidentiary hearing

was before the trial court at the time

petitioner pled guilty. In the absence

of such a showing, the matters before the

court at the time of the guilty plea was

insufficient to raise a bona fide doubt a

as to competency to stand trial. Under

such circumstances, there was no error in

the trial court failing sua sponte to

conduct a competency hearing. 2/

The relief sought as to the con-

viction in Cause No. 10,169 in the 23rd

Judicial District Court of Fort Bend

County is denied. The relief sought as

to the conviction in Cause No. 10,170 is

granted and the indictment is ordered

dismissed. The relief sought in Cause

No. 10,171 is granted and the conviction

is set aside and prosecution ordered

dismissed.

It is so ordered.

TOM G. DAVIS, Judge

(Delivered October 15, 1980)

EN BANC

2/ Petitioner does not contend that he was in

fact incompetent at the time of trial.

competency ing

Cf. “ae v. Estelle, 588 F.2d 1017 (5th

Cir v. Estelle, 493 F.2d

. ;

794 (5th Cir.

NO. 64,508

EX PARTE - - - Habeas Corpus Application

From Fort Bend County

STEPHEN A. McWilliams

DISSENTING OPINION

The majority grants the relief in

the aggravated rape case because of the

omission in the indictment of a culpable

mental state. The cupable mental states

are that one intentionally, knowingly,

recklessly or negligently commit the act

constituting a crime. It is inconceiv-

able that one can, by threats to take a

life, compel a woman to submit to inter-

course by recklessness or negligence. Is

it conceivable that one can threaten to

inflict serious bodily injury or death to

compel a woman to submit to intercourse

without knowing it?

The indictment reads that petitioner

did

". . . unlawfully, by force

and threats, and without the

consent cf Mrs. J L

ravish and have sexual Inter-

course with Mrs. J L , a

female not then and there the

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EE —eeeeeeooorererererereeeee

sets

wife of the said Stephen

McWilliams, and the said Stephen

McWilliams did compel submission

by Mrs. J L to said

ravishment and sexual inter-

course by threatening to inflict

death and serious bodily —,

to the said Mrs. J L

V.T.C.A., Penal Code, Section 21.02,

forth the elements of rape:

"“(a) A person commits an offense

if he has sexual inter-

course with a female not

his wife without the

female's consent.

"(b) The intercourse is without

the female's consent under

one or more of the follow-

ing circumstances:

"(1) he compels her to

submit or participate

by force that over-

comes such earnest

resistance as might

reasonably be expected

under the circum-

stances;

"(2) he compels her to

submit or participate

by any threat, commu-

nicated by actions,

words, or deeds, that

_would prevent resis-

tance by a woman of

ordinary resolution,

under the same or

similar circumstances,

because of a reason-

able fear of harm; ..

V.T.C.A., Penal Code, Section 21.03,

sets forth the aggravating circumstances

of rape:

"(a) A person commits an offense

if he commits rape as

defined in Section 21.02 of

this code or rape of a

child as defined in Section

21.09 of this code and he:

& &

"(2) compels submission to

the rape by threat of

death, serious bodily

injury, or kidnapping

to be imminently

inflicted on anyone."

In Childs v. State, 547 S.W.2d 613

(Tex.Cr.App. 1977), the defendant con-

tended that the indictment failed to

allege to whom the threat of death was

communicated and was, thus, fundamentally

defective. We held that a "logical

deduction arising from a reasonable

reading of the entire indictment is that

the prosecutrix submitted to appellant's

act because he threatened her with the

imminent infliction of death." 547

S.W.2d at 615.

In Clark v. State, 527 S.W.2d 292

(Tex.Cr.App. 1975), we held that the

indictment, read as a whole, was suffi-

cient to apprise the defendant of the

offense under the statute. See also

Banks v. State, 530 S.W.2d 940

(Tex.Cr.App. 1976).

Article 21.17, V.A.C.C.P., provides:

"Words used in a statute to

define an offense need not be

strictly pursued in the indict-

ment; it is sufficient to use

other words conveying the same

meaning, or which include the

sense of the statutory words."

When the indictment in the present

case is read as a whole, it is clear that

McWilliams is charged with aggravated

rape. It is incomprehensible that

. someone can threaten to inflict death and

serious bodily injury on another and by

force and threats have sexual intercourse

with the complainant and not know about

it or intend to do it. We should look at

the indictment, absent a motion to quash,

only to see if it sufficiently charges an

offense against the State.

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ee EE

The majority grants relief in the

aggravated kidnapping conviction. The

relief should not be granted in aggravat-

ed robbery convictions for the reasons

set forth in the dissenting opinion in

Orosco v. State, 590 S.W.2d 121

(Tex.Cr.App. 1980).

Douglas, Judge

(Delivered October 15, 1980)

En Banc

B1.12

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II. OPINION ON STATE'S

MOTION FOR REHEARING

II. OPINION ON STATE'S

MOTION FOR REHEARING

Ex Parte Stephen McWilliams, No. 64,508

Pp. y 82).

The petitioner in this post-convic-

tion habeas corpus proceeding, Art.

11.07, V.A.C.C.P., seeks relief under ‘u:ie

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 suff<rs no more punishment

that 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 detered

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, ag-

gravated 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 con-

viction 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 aggravat-

ed 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;

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EOE eo

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

constitutional 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

-

oor

material elements or when the two of-

fenses required the same evidence to

convict. Herrera 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) defen-

dant'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 defen-

dant'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

alin

_———————— eas

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 ontc the University of Houston

campus.

That different decisions can be sup-

ported by these two theories indicates

the lack of precedential value of the

carving doctrine decisions. In some

cases this Court cites both the Herrera

"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.

afeo

_———————————————————eeVv——VOOO

1976). Neither of these two tests is

without scholarly criticism. See Steele,

A Review of the Jeopardy Defense in

Texas, 16 Tex Tech. Law Review, 393

(1981); Kirchheimer, The Act, the Of-

tense, 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 trans-

action. The constitutional provisions

speak of double ‘eopardy in terms of the

“same offense” rather than "same trans-

action." 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:

"([O]nce Congress has defined a

statutory offense by its pre-

scription of the ‘allowable unit

of prosecution’ that prescrip-

tion determines the scope of

protection afforded by a prior

conviction acquittal."

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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 pro-

vision, and to allow prosecutions for

each offense occurring within one crimi-

nal transaction. 1/ Prosecutions for

each offense, other than property of-

fenses occurring in one criminal trans-

action are to be prohibited only when in

1/ Compare Chapter 3, Multiple Prosecutions and

Double Jeopardy, Texas Penal Code, A P’o-

posed 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).

violation of the double jeopardy clauses

of the Federal and State Constitutions.

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 inde-

cent exposure, fondling, and statutory

, rape, also involving and same person on

one occasion. Ex parte Calderon 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

nontheless were a single transaction

afe

OO eee ae

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 391

(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 not 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 h*s provided such a test:

"(T)he applicable rule is that

where the same act or transac-

tion constitutes a violation of

two distinct statutory provi-

sions 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); Whale v.

United States, 445 U.S. 684, 100 S.Ct.

1432, 63 L.fd.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).

-10-

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 ag-

gravated kidnapping and aggravated

robbery, the State's Motion for Rehearing

is granted; the relief sought will be

denied.

ell-

It is so ordered.

DALLY, Judge

Delivered May 12, 1982

EN Banc

EX PARTE STEPHEN McWilliams Habaes Corpos

Application

No. 64,508 From FORT BEND

County

DISSENTING OPINION

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. . . .” and the court seems to

have chosen so to hear it, for the court

has delivered 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 punish-

ment than he would had he committed only

=i 3e

one of the crimes. Justice and reason

demands [sic] prosecution for each of the

separate offenses," to deter such epi-

sodes. This seems to be more a rhetori-

cal flourish than a compelling reason. A

person who robbed, kidnapped, raped, and

murdered his victim could be punished by

death, regardless of the carving doc-

trine. 2/ It is not clear, even in the

lights of justice and reason, that the

prospect of an additional term of impris-

onment would be a marginally greated

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

1/_ V.A.C.C.P., Art. 11.07, Sec. 3.

2/ ~ =V.T.C.A., Penal Code, Sec. 19.03(a) (2).

3/ V.T.C.A., Penal Code, Secs. 20.04(b) (ag-

gravated kidnapping), 21.03(c) (aggravated

rape), and 29.03(b) (aggravated robbery).

-14-

es eS Oe

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 sen-

tences, it might make sense to say that

multiple punishments ar 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

4/ This same purpose underlies V.T.C.A., Penal

Code, Sec. 12.45 ("Admission of Unadjudi-

cated Offense") .

-15-

robbery, kidnapping, and rape, he may

insist on separate trials. After obtain-

ing 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 Constitu-

tion does not require the carving doc-

trine, but it is wrong about the Texas

Constitution.

The Supreme Court has not held ex-

plicitly that the Fifth Amendment does

not require the carving, or “same trans-

action,” test, but it has rejected

opportunities to adopt the test so often

that the point is sufficiently clear.

el6e

I tll

See, e.g., Brown v. Ohio, 432 U.S. 161,

170 (1977) (Brennan, J., concurring);

Thompson v. Oklahoma, 429 U.S. 1053

(1977) (Brennan, J., dissenting to denial

of certiorari) (collecting ten other

denials of certiorari); Harris v.

Washington, 404 U.S. 55, 57 (1971)

(statement of Douglas, Brennan, and

Marshall, J.); Ashe v. Swenson, 397 U.S.

436, 442 (1970) (Brennan, J., concur-

ring): Abbate v. United States, 359 U.S.

187. 196 (1959) (separate opinion of

Brennan, J.); Hoag v. New Jersey, 356

U.S. 464, 477 (1958) (Douglas, J.,

dissenting). See also Pennsylvania v.

Campana, 414 U.S. 808 (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 based on state or federal constitu-

tions, 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 minimums

required by the Fourteenth Amendment,

however. Cooper v. California, 386 U.S.

58, 62 (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

5/ 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.

6/ ‘Tex. Const., Art. 1, Sec. 14.

EE _ oor ee

"it must be borne in mind that there is

another principle applicable to this

subject of jeopardy, which is quite

Gistinct for that which obtains in pleas

of former conviction or acquittal general-

ly. This is the doctrine of carving. .. ."

. Id. at 215. Carving has had a constitu-

tional 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.

4 The court's third reason for reject-

ing 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 trans-

action" 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 more consistent-

ly. 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

7/ 75 Yale L.J. 262, 270 n.34 (1965) (Alabama,

Georgia, New Jersey, Oklahoma and Texas).

8/ Seen.5, supra.

9/ As an e.ample of carving cases that are

in conflict, the court cites Lee v.

State, 505 S.W.2d 816 (Tex.Cr.App. 1974),

it with Ex parte Calderon, 508

S.W.2d 360 (Tex.Cr.App. 1974). A close

reading of the Lee opinion reveals that

was not applied at

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 legisla-

tive rejection of a proposal to reform

the carving doctrine in Chapter 3 of the

proposed penal code indicates an intent

to abolish that doctrine. fhe logic is

not apparent. One would suppis« that a

legislative rejection of a reform would

indicate the opposite: the Legislature's

unwillingness to change this well estab-

lished rule of law.

The court's sixth reason is strict

constructionism. 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 sta-

tutes make no provision for such a

doctrine. .. . [W]e will now decide

double jeopardy questions under the

@2l<

pe a a mk ik ia ili aR As an

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 other. The role of

this court is to fashion such rules so

that the broad commands of the constitu-

tion 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

constructionism 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 .... Itisa

form of judicial laissez-faireism by

which the judge . .. defers to other

-22-

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 Amend-

ment, it contains “deceptively plain

language [which] has given rise to

problems both subtile and complex. .. ."

Crist v. Bretz, 437 U.S. 28, 32 (1978).

The carving doctrine is a solution to the

problems of deciding when a person may be

subjected to multiple trials or punish-

ments 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

10/ 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."

~23=

stricter construction of the constitu-

tions than the other is false; there

cannot be a strict construction of the

constitutional term, “same offense."

It is worth repeating that the

Blockburger 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 multi-

ple punishments which are imposed in only

one trial). Brown v. Ohio, 432 U.S. i161,

1€6 n.6 (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

Biockburger defines the scope

of the double jeopardy clauses

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 (1980)], Blockburger is

-24-

‘a rule of statutory construc-

tion... 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 (footnote omit-

ted). * * * [T]he essential

inquiry is Congress’ intent.

- See 445 U.S. at , 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’, 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 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

1l/ Giliette v. State, 588 S.W.2d 361, 364,

-Cr.App. 1979) (Roberts, J.,

dissenting) .

12/ See Ex parte Byers, 612 S.W.2d 534, 536

(Tex.Cr.App. 1980), which was based on

four untranscribed tape recordings.

eee

separate statutory elements of each

offenss 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 in-

cluded 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) (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/

13/ These cases derive from v. State, 532

S.W.2d 302, 315-316 (Tex.Cr.App. 6), 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

Footnote continued on next page.

-26-

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 con-

victed and punished for both under

Blockburger. This will be constitu-

tionally interesting.

The court discards an accepted doc-

trine for no good reason, in exchange for

a doctrine that will involve more dif-

ficulties than it now admits. I am not

Footnote continued from previous page.

of the same or less than all the facts

required to establish the commissior of the

offense charged... " The dictum in

convinced that the grass is greener on

the Blockburger side of the defense. I

dissent.

DELIVERED: May 12, 1982

EN BANC

Onion, P.J. and Teague, J.

join in this opinion

ROBERTS, Judge

EX PARTE STEPHEN McWilliams Habaes Corpus

Application

No. 64,508 From FORT BEND

County

DISSENTING OPINION ON

STATE'S MOTION FOR REHEARING

Application of the carving doctrine

by Texas courts for more than one hundred

five years now has provided a significant

protection against the citizen being

twice placed in jeopardy. Its brutal

dispatch by a majority of my Brothers

"got the blood of controversy in my

neck," 1/ and I must dissent.

1/ Justice Oliver Wendel Holmes, in a letter to

In 1876 the Supreme Court of Texas found

in Wilson v. State, 45 Tex. 76 (1876) that

"the great weight of American author-

ities" supported the conclusion it was to

reach. Included was an Indiana decision,

Jackson v. The State, 14 Ind.R. 327, from

which the Texas Supreme Court extracted

the following:

"The State canrot split up one

crime and prosecute it in parts.

A prosecution for any part of a

single crime bars any further

prosecution based upon the whole

or part of the same crime."

Wilson, supra, at 83.

In conclusion:

"(When] the transaction is the

same [it] is but one offense

against the State, and... the

accused cannot be convicted on

separate indictments charging

different parts of one trans-

, action as a distinct offense. A

conviction on one of the indict-

ments bars a prosecution on the

& other." Ibid.

Also in 1876 the other appellate

court in Texas decided Quitzow v. State,

1 Tex.App. 47 (Ct.App. 1876), and so

far as can be ascertained the first

shorthand rendition of the carving

OY

er

doctrine appeared in the opinion of the

Court written by Presiding Judge White:

"The prosecutor had a right to

carve as large an offense out of

this transaction as he could,

but yet must cut only once.”

Id., at - - 2/

The “transaction” was Quitzow's hiring

from a livery stable a horse and, at the

same time, a saddle and bridle and not

returning them when agreed. Applying the

carving doctrine, the Court held that

conviction of theft of the norse pre-

cluded trial and conviction for theft of

saddle and bridle. The Court relied on

and discussed Wilson v. State, supra, and

several other authorities.

In Simco v. State, 9 Tex.App. 338

(Ct.App. 1880) Presiding Judge White, for

the Court, opined why once a defendant,

2/ A year before the Supreme Court of Texas had

rule tha

transaction,” citing on

Jackson Vv. State, 43 Tex. 421, 423 (1875

(All emphasis is mine unless otherwise

ae

ae

-3l1-

who stole three horses simultaneously,

each belonging to a different owner, was

convicted of theft of any one of them, he

could not thereafter be convicted of

theft of the other horses,

"Because the transaction -- the

taking of the three horses at

° the same time -- would consti-

tute but one offense in law

(Wilson v. The State, 45 Texas

76); and the plea [of former

conviction] would be good upon

the strength of, and by virtue

of another rule, well settled in

criminal practice, which allows

the prosecutor to carve as large

an offense out of a single

transaction as he can, yet he

must cut only once. Quitzow Vv.

The State, 1 Texas Ct.App. °

Here is where the doctrine of

carving would come in and

support the plea. [Referring to

Wharton Criminal Law and ‘author-

ities cited in the note.']”

Id., at 349.

The following year Judge Hurt wrote

for the Court in Hirshfield v. State,

11 Tex.App. 207 (Ct.App. 1881). Upon

indictment alleging all of the elements

constituting the offense of uttering a

forged instrument followed by other

allegations of swindling Hirshfield was

convicted of swindling. Then in effect

a33e

EE EEOOOee ae

was a provision of the panel code that

precluded the offense of swindling from

taking a case of theft or some other

proscribed offense “out of operation of

law which defines such other offense,”

and on this ground Hirshfield had ex-

pected to the indictment, contending he

could not, therefore, be prosecuted for

swindling. The contention was rejected

by the trial court and the jury was

instructed that the trial was for the

offense of swindling. The Court held the

exceptions should have been sustained,

reversed the judgment and dismissed the

prosecution.

In the opinion of the Court Judge

Hurt examined the meaning of Article I,

§ 14, the jeopardy cluuse in the Consti-

tution of the State of Texas and con-

cluded that "a person shall not be twice

put in jeopardy for the same act, acts,

or omission, which are forbidden by

positive law, and to which is annexed, on

conviction, any punishment prescribed in

-33-

_———eEeEeeO ee

this Code." it followed, therefore, that

"a conviction tor swindling which rests

upon and is supported alone by the at of

passing as true the instrument set forth

in this indictment is a full and complete

satisfaction of the law which forbids,

and upon conviction prescribes, a punish-

ment for said act." But though the same

act of passing as true a forged instru-

ment “enters into and constitutes the

vital elements of, at least, two of-

fenses, to wit, swindling and knowingly

uttering a forged instrument as true," a

conviction for that act “would be a

complete satisfaction of the violated

law." As a general proposition it was

correct that as an accused "could not

have been convicted under the indictment

for swindling of the offense of knowingly

passing as true a forged instrument,

therefore he cannot plead this conviction

swindling to a prosecution for uttering a

forged instrument," still

"(i]t must be borne in mind that

there is another principle

applicable to this subject of

jeopardy, which is quite dis-

tinct from that which obtains

pleas of former conviction or

acquittal generally. This is

the doctrine of carving, and is

explicitly recognized and

effectively applied in a number

of cases by our Supreme Court

and Court of Appeals. (Citing

them and others)." 3/ Id., at

215.

Presiding Judge White reiterated the

doctrine in Wright v. State, 17 Tex.App.

152 (Ct.App. 1884), a case where the

accused had been acquitted of stealing

cattle of Houston and then put to trial

and convicted o¢ theft of cattle of Floyd

at the same time. The Court held that a

plea of former acquittal was not good,

but demonstrated that if the case had

been one of former conviction a plea of

3/ tzow v. State, supra; Wilson v.

, Supra; State v. Damon, 2 Tyler

387; State v. Williams, 10 Humph. 101;

’ - 327; State v.

, Bex. ee oe ie

. ’ Vv. , , 7 Clem

Vv. State, . .

former conviction would have been sus-

tained because:

". . »« the transaction being but

one, the prosecution could carve

but once, and having once carved

and convicted it could not claim

another and second conviction

against the same party for the

single offense. It is the

2 doctrine of carving, a well

established principle of cri-

minal law, which makes this

' distinction between the pleas of

autrefois acquit and autrefois

convict where several ostensible

Crimes are covered by a single

transaction. But for this

doctrine of carving, [the] plea

of former conviction would not

be maintainable in law.”

Reference is made to his earlier opinion

in Simco; then the Presiding Judge

further explains that had Wright been

first convicted of taking Houston's

cattle,

"the State had carved already

and obtained his conviction for

the same offense, and in law

that is a satisfaction of the

a entire offense so far as he is

concerned,"

Wilson v. State, supra, is then relied

upon. Id., at 159.

Appellate jurisdiction in criminal

cases was transferred and vested in the

Court of Criminal Appeals by constitu-

tional amendment adopted in 1891 that

became Article V, § 5. Through Judge

Davidson, who had moved over from the

Court of Appeals, 4/ the Court would soon

state, "If the same violence and assault

. were relied upon in both cases to sustain

the conviction, then the plea [of former

conviction] was well grounded; or, if it

was one continuous transaction, in which

appellant perpetrated the robbery by the

assault, the prosecution could come but

once,” Moore v. State, 33 Tex.Cr.R. 166,

25 S.W. 1120 (1984). In Herera v. State,

cited and discussed in the majority

opinion, the Court explained the carving

doctrine in more expansive terms, viz:

“(W)]hen one transaction is

presented to the government,

which may include distinct

criminal offenses, the govern-

ment can carve but once. It can

take the greater, and prosecute

for that; or it can take the

lesser offense, and prosecute

for that; and a prosecution and

4/ 14-20 S.W. (iii).

-37-

inicio ees meme aes mmm

conviction of neither will

equally be a bar to another

subsequent prosecution for the

other offense, which involved

the same transaction.” Id., 34

S.W. at 944,

Finally, for my present purposes, in

Sadberry v. State, 39 Tex.Cr.R. 466, 46

S.W. 639 (1898), the Court was confronted

with an unusual fact situation implicat-

ing the carving doctrine. Sadberry, "on

account of some indignities heaped upon

him during the day by some fishermen,"

approached their camp at night while the

four of them were seated around a camp-

fire playing cards. From his gun loaded

with No. 5 shot and slugs, Sadberry fired

one shot that wounded all four campers.

He was later tried and convicted of

shooting one of them with intent to

murder, and when then placed on trial

for assaulting the brother of the first

with intent to murder pleaded former

conviction. That plea, the Court found,

was well taken and should have been

sustained. For the Court Judge Davidson

pitfully wrote:

"The state had carved its case,

and had secured a conviction,

and, having done so, under the

state of the case disclosed by

the record, it was not entitled

to further prosecution. See

Simco v. State, 9 Tex.App. 338;

Wright Vv. State, 17 Tex.App.

° e doctrine laid down in

the two cases is the well-

settled rule in Texas, and it is

not necessary to cite other

authorities.”

What had been demonstrated thus far,

then, is that over the course of some

twenty years the Supreme Court of Texas,

the Court of Appeals and the Court of

Criminal Appeals, each in its own time,

found, understood, applied and explained

the carving doctrine to the bench and the

bar - all without disagreement serious

enough to provoke a dissenting point of

view. Such a firmly grounded doctrine of

law ought not be jettisoned because

latter day judicial writings are seen by

some to make an "erratic" application of

it.

Even less attractive is the notion

that the doctrine is somehow inherently

suspect because it is a judicial creation

which, it is said by the majority, finds

no “mandate” in jeopardy provisions of

our constitutions. The whole body of

. common law was made and modified for

centuries without constitutional dic-

tates. 5/ The great jurists who wrote

for their respective courts in this State

before the turn of the century never

pretended the carving doctrine was

constitutionally prescribed in precise

words and terms, but they did find that

it provided a bar against a citizen's

being again put in jeopardy for another

offense shown by plea of former con-

viction to have been committed in the

5/ “The common law consists not only of judi-

cial precedents (opinions in decided cases)

but of principles, standards, doctrines, and

traditions. * * * Our common law started |

in the Middle Ages, fram practically noth-

ing." Leflar, Sourcee of Judge-Made Law, 24

Okla.L.Rev. 319 (1971), quoted by Aldisert,

Op. cit. supra, at 92-93.

———————— Samm aawr

same transaction covering the first

offense, Wilson v. State, Simco v. State,

Hirshfield v. State, Herrera v. State and

Sadberry v. State, all supra, and that

the doctrine was so well established

in the criminal law that it should be

applied, and they uniformly insisted that

the carving doctrine be followed by the

prosecutors and trial courts of the

State.

Moreover, during the one hundred and

five years the doctrine has been at work

in Texas the code of criminal procedure

and the penal code have four times

simultaneously been revised - 1879, 1895,

1911 and 1925 - and once in its now time:

the code of criminal procedure in 1965

and the penal code in 1973. Never has

the Legislature of this State, whose

members are presumed by law to know the

doctrine 6/ and surely possess the power

6/ v. State, 547 S.W.2d 590, 592

Cr. e ; Townsend v. State, 427

S.W.2d 55, 62 (Tex.Cr.App. 1968) .

————eeEeEeEeEeEeEeEeEeEeEeEeEeEeO

and authority to do so, repealed, amended,

altered or modified the doctrine. On the

contrary, it is a matter of record that

the Legislature only recently rejected a

proposal to do that.

Chapter 3 in the proposed revision

of the penal code as originally intro-

duced reported out by committee broadly

defined “criminal episode” to embrace all

offenses produced by the same criminal

conduct as well as all offenses aimed at

accomplishment of a single criminal

objective, and for the first time would

have

"codified all the law in this

area; substituted a single

precisely-worded definition of

criminal episode of the five

different definitions of

*transaction' identified in the

case law; and incorporated recent

U.S. Supreme Court decisions

changing the Texas law in this

area."

That undertaking has been acknowledged

as “ambitious” by Searcy and Patterson,

"cutting across as it had to both

substantive penal law and criminal

procedure.” The proposal was rejected

by adoption of a floor amendment which

corrupted the concept and reduced its

application to “the repeated commission

of any one offense defined in Title 7 of

the code [Offenses Against Property]." 7/

The pair of consultants and observers

have “no doubt its scope and the several

radical changes it would have effected in

texas law contributed to its rejection."

Practice Commentary following V.T.C.A.

Penal Code, § 3.01.

Putting this record of what the

Legislature cut out to the proposed

Chapter 3 in the light of its presumed

knowledge of the longstanding carving

doctrine, we are “entitled to assume that

the legislature, through its inaction,

indicated its approval” of the doctrine,

Allen Sales & Servicenter, Inc. v. Ryan,

525 S.W.2d 863, 866 (Tex. 1975); see also

Republic Ins. Co. v. Poole, 257 S.W. 624,

625 8/ (Tex.Civ.App. 1923 - San Antonio,

writ ref'd.).

Therefore, though the carving

doctrine be a judicial creation, still

P legislative approval and sanction

of the doctrine just eight years ago -

the last time - may be strongly inferred.

8/ "That decision [of the Supreme Court of

Texas] was followed in this state and

was the law when the present insurance

statute was enacted, and, if the

Legislature had desired to change

the law as promulgated by the

Supreme Court, it would have been

enacted that no parole contract for

insurance should ever be valid.

This was not done, and the inference

will arise that the Legislature

sanctioned the construction placed

upon insurance policies by the

Supreme Court.”

In spite of what is so obvious in

this respect, the majority somehow gleans

from rejection of proposed Chapter 3 and

enactment of the four sections that have

nothing to do with the carving doctrine

that the Legislature “appears” to have

intended “to allow prosecutions for each

offense occurring within one criminal

transaction.” But the law is that a

change in the status quo of a doctrine is

not to be inferred unless the legislative

body has unmistakably indicated a con-

trary wish. Bush v. Oceans Internation-

al, 621 F.2d 207, 211, n.5 (CA 5 1980).

Since the Legislature did not tinker with

the carving doctrine at all, there is no

indication of any desire to abolish it,

much less an unmistakable one.

That the power to define offenses

lies in the Legislature is rudimentary,

and undoubtedly once it has defined a

statutory offense that prescription of

the “allowable unit of prosecution"

determines the scope of protection

Re

afforded by a prior conviction or acquit-

tal, just as the Supreme Court of the

United States reiterated in Sanabria v.

United States, 437 U.S. 54, 98 S.Ct.

2170, 57 L.Ed.2d 43 (1978). But to

characterize that statement as showing a

kind of “deference” to Congress that this

Court should show to the Legislature is

to call it something it is not. The

opinion of the Supreme Court went on to

explain in the margin that since “only a

single violation of a single statute is

at issue here," there was no need to

analyze the case under familiar jeopardy

tests “used to determine whether a single

transaction may give rise to separate

prosecutions, convictions and/or punish-

ments under separate statutes." Patently

the Supreme Court is not showing "defe-

rence” to the point of abdicating its own

constitutional duty and function to

decide jeopardy questions under doctrines

it has developed over the years - and the

id -

—-. ~~ " a

cases cited and discussed in the foot-

note, Sanabria, supra, U.S. at 70 reflect

there are several in the federal judicial

system as well.

Nor is it disconcerting enough that

two theories have developed in analyzing

what constitutes the “same transaction"

for purposes of applying the carving

doctrine. This is but a recognition that

human criminal behavior does not uniform-

ly follow the same pattern. In trying to

decide what is the “same offense” for

constitutional jeopardy purposes the

Supreme Court of the United States has

developed essentially two different

theories.

The Blockburger test, set forth in

the majority opinion, is only one. There

is the Neilsen perception as well; it

applies, like one of the carving the-

ories, when a number of offenses arise

from a continuous transaction. Ex parte

Neilsen, 131 U.S. 176 (1889) states:

"([A] person [who] has been tried

and convicted for a crime which

has various incidents included

in it .. . eannot be a second

time tried for one of these

incidents without being twice

put in jeopardy for the same

offense." Id. at 188. 9/

See Brown v. Ohio, 432 U.S. 161, 166,

n.6 (1977) in which the Supreme Court

recognizes that in providing a test for

determining what is the “same offense”

Blockburger and Neilsen stand on dif-

ferent footing; it also notices “ad-

ditional protection” supplied by the more

recently enunciated doctrine of col-

lateral estoppel in Ashe v. Swenson, 397

U.S. 436 (1970). In short, neither has

the Supreme Court abandoned any test

formulated by it early and late in

addressing the “same offense" declaration

9/ This concept follows Ex parte Snow, 120 U.S.

244 (1887) and distinguishes the principle

flowing from the language of v. Com

monwealth, 108 Mass 433, that

the foundation of , Supra. See

Gavieres v. Uni P U.S. 338, 342

nor is it abashed that there are two

theories which may be considered. 10/

Finelly, the majority takes pains to

note that the carving doctrine is indigenous

in Texas - a proposition that will not

withstand cursory examination. 11/ Even

‘ the same unique terminology has been

used, without attribution to ‘fexas:

"Merely because one element of a single

10/ Thus, the assurance in the majority opinion

that the Court will decide jeopardy ques-

tions with a "strict construction” attitude

‘3 baffling. Nothing in the Sixth Amendment

remotely states either the tests of B

or Neilsen or the Ashe v. Swenson

of collateral estoppel, nor has the Supreme

Court of the United States even claimed they

are born on "strict construction." Indeed,

as indicated in note 9, ante, the B

east has been traced back ts an opinion of

the Massachusetts Supreme Court, with a

nodding acknowledgement along the way to

Mr. Bishop. See Burton v. United States,

202 U.S. 344, 381 , one

blocks of Gavieres v. United States, supra.

11/ "Where an offense is essentially and substan-

tially a single one, the state cannot divide

it into two or more offenses and punish for

each separately. So, it is held that a

single act or transaction may not be split

inot two or more separate offenses .. .,"

22 C.J.S. 27, Criminal Law § 9(1). In Kansas,

"two separate offenses cannot be carved out

of the one criminal delinquency,” State v.

Pierce, 205 Kan, 433, 469 P.2d 308,

(Kan. 1970).

a aaa

criminal act embraces two persons or

things, a prosecutor may not carve out

two offenses by charging the several

elements of the single offense in dif-

ferent counts. . .," Robinson v. United

States, 143 F.2d 276, 277 (CA10 1944).

And before 1876 when the Supreme Court of

Texas decided Wilson v. State, supra, and

the former Court of Appeals decided

Quitzow v. State, supra, the "general

rule” had already been discerned from

Mr. Bishop (1 Bishop on Criminal Law,

536) in Jackson v. State, supra, note 2,

at 423. 12/

12/ 1 Bish. New. Cr. Law, § 791 reiterated the

doctrine

:

"One answerable for a criminal

transaction may be held for any

crime, of whatever nature, which can

be legally carved out of his entire

offending. He is not to elect, but

the prosecuting power is."

Quoted by the Court in Kaufman v. State, 70

-Cr.R. 438, 159 S.W. 58, 647 (1913); in

Edition (1892), at 478, n.1

But if Texas is the only state

adhering to the carving doctrine, must

an established doctrine be abandoned

for that reason? Just two years ago a

strenuous dissenting opinion in Orosco v.

State, 590 S.W.2d 121, 124 (Tex.Cr.App.

1979) which, one quickly notes, bears

shrinking similarities to the opinion of

the Court in the case at bar, did not

sway a majority of my Brothers. What

public interest persuades them today?

There are sound policy

considerations supporting our carving

doctrine, not the least of which is that

the people of the State of Texas, through

its grand jury, assisted by its prosecut-

ing attorney in drawing an indictment

against an accused for criminal conduct,

are better served by the State "taking

its best shot,” so to speak, the first

time rather than trying to improve on its

successive rounds. 13/ It is a demon-

strable tactic, as Kirschheimer proves

from the cases, for some prosecutors to

hold in reserve facts as well us theories

of law to advance when their first

efforts do not succeed as desired. 14/

13/ The majority today and the dissenters in

Orosco v. State, supra, selectively extract

criticism from scholarly writers. Thus, one

is not supposed that no mention is made of

the thrust at “the skillful prosecutor" who

finds it easy to manipulate offense

categories so as to "sidestep" jeopardy

protections

Kirchheimer sees it as too favorable to an

accused, also disregards his solution to the

problem: a modified same transaction test

with liberalization of practice of amending

charging instrument, Id., at 534.

14/ The classic case, of course, is Ciucci v.

Illinois, 356 U.S. 571, 78 S.Ct. 839, 2

L.Ed. 983 (1957). Three of four separate

indictments charging Ciucci with murder of

his wife and three children, respectively,

were tried; the first resulted in 20 years

take remedial action, le v. Golson, 32

TL1.2d4 398, 207 N.E. P , and

the Illinois Legislature enacted corrective

That is precisely what the courts have

said the carving doctrine was intended to

prevent. 15/

The “fundamental unfairness of

repeated trials for the same illegal

conduct is apparent and has troubled the

courts and the legislature,” People v.

Golson, supra, note 9, at 75. The

carving doctrine is designed to relieve

that fundamental unfairness, though the

jeopardy provisions of our constitutions

may not. See People v. Mullenhoff,

supra, note 9, at 450. Thus, in Herera,

supra, in quoting from an earlier New

Jersey opinion the Court approved the

proposition that "it is better that the

15/ Again in Herrera, supra:

"It was competent for the state to

prosecute and convict for either of

said offenses which involved the same

transaction, but having selected one,

no matter if it was the lesser offense,

the state is bound by its election;

transaction." Id., at 944-945.

_ VO eee

residue of the offense go unpunished

than, by sustaining the second indict-

ment, to sanction a practice which might

be rendered as an instrument of oppres-

sion to e citizen.” 16/

The majority of the Court does not

make any compelling showing that such

policy considerations have suddenly

become unsound. 17/ Nor has it provided

i6/ Herrera held that a conviction for assault

with intent to murder barred a subsequent

prosecution for robbery committed in the

same transaction. Trial on the

indictment was held after Herrera had

sentenced to serve seven years for the

assault with intent to mrder and had

“served out his time,” Id., at 943. Truly,

the second prosecution and conviction

constituted "an instrument of oppression."

17/ At least the dissenting opinion in Orosco v.

State, supra, argued the

notion that "[o]ne should not be permitted

to exhibit a weapon to another and commit

several offenses against that person and be

seen Par Seen co oe aon Se

Id., at 125, nor “commit as many crimes

against that person as he wishes without

gle = gmail Po Mee Rey gs

Retleen, at hy = But e.g., B and

395 U.S. 711, 717 (1965); Brown v. Onlo, 432

U.S. 161. 165 (1977). i IB ye

a principled reason to approve that which

has long been rejected “as an instrument

of oppression.” That the Court has

encountered “difficulties” in applying

the doctrine impugns members of the Court

more than the doctrine itself, and

suggests that efforts at consistency in

application ought to be made before

surrendering to a professed inability to

do the judicial job. 18/

In abandoning a salutary doctrine

extent more than one hundred and five

years in this State, a slender majority

of the Court exposes the citizens to a

risk of deprivation of liberty unequaled

in the annals of Texas jurisprudence. 19/

I dissent.

CLINTON, Judge

(Delivered May 12, 1982)

EN BANC

Bl.11

III. OPINION DISSENTING

TO DENIAL OF LEAVE

TO FILE SECOND

MOTION FOR REHEARING

IIT. OPINION DISSENTING TO DENIAL

OF LEAVE TO FILE APPELLANT'S

MOTION FOR REHEARING

Ex Parte Stephen McWilliams, No. 64,508

(Tex. Crim. - July 14, 1982).

Original submission the Court found

that the indictment for aggravated rape

is fundamentally defective and, accord-

ingly, ordered that indictment in Cause

No. 10,170 dismissed. On State's Motion

for Rehearing the Court does not disturb

the relief thus granted. There remains

before us, then, contentions with respect

to aggravated robbery, Cause No. 10,169,

and aggravated kidnapping, Cause No.

10,171. As to them, so anxious to

abandon the carving doctrine, the opinion

of the Court on rehearing did not under-

take to place those alleged offenses in

factual context in order to address the

jeopardy problems.

The charging portion of the ag-

gravated robbery indictment is set out

verbatim in the opinion on original

submission, and need not be reproduced

here. Suffice to say that the aggra-

vation alleged is that on or about

March 21, 1975 appellant did “knowingly

threaten and place the owner in fear of

imminent bodily injury and death by then

and there using and exhibiting a deadly

‘ weapon, to wit, a firearm." The owner

is identified by name indicating she ir

a female.

The aggravated kidnapping indict-

ment alleged, in terms of V.T.C.A. Penal

Code, § 20.01(2)(A) and § 20.04(a) (3),

that also on or about March 21, 1975

appellant did intentionally and knowing-

ly abduct the same named female he is

alleged to have robbed "with the intent

to facilitate his own flight after the

commission of a felony, to wit: Ag-

gravated Robbery.”

The owner cum kidnap victim, whom

we will call Mae, was then thirty-nine

years of age, employed as a clerk at a

convenience store on Highway 288 in

Arcola, Fort Bend County. At about

-2-

ee

11:00 p.m. on March 25, 1975, with the

aid of her nineteen year old daughter and

& seventeen year old girl friend, Mae had

just closed the store and was locking

outside ice machines when appellant

walked up behind her. Producing a gun,

he ordered her to unlock the door and,

shortly, made the three females re-enter

the place; brandishing and threatening to

use the pistol, he had the teenagers lie

face down on the floor while Mae located

and gave him all the money in the store.

Then he directed Mae to cut the telephone

cord and, kneeling down with Mae, told

her daughter andé the girl friend to

remain lying down for thirty-five

minutes, that he was taking Mae with him

and if she wanted her mother alive she

better not move or she would never see

_ her mother again. Taking two packages of

cigarettes and two six packs of beer,

appellant had Mae close her eyes, and he

led her to a nearby station wagon.

That done, he drove around back

roads, chattering all the time about

sorrowful events in his life, 1/ until he

managed to get stuck at an isolated dead

end, where eventually at gunpoint he

required Mae to commit a round of deviate

sex acts and other indecencies, and then

he raped her, twice. While he slept Mae

made her escape. At about five o'clock

in the morning, still supine in the

station wagon, appellant was taken into

custody without incident by two deputy

sheriffs.

Applying the carving doctrine to

such a classic situation, on original

submission the Court set aside the

1/ The opinion on original submission recounts

at least two prior commitments to mental

institutions and his ultimate escape from

the second one. After first telling Mae he

was going to kill her because he knew that

her daughter had contacted the law, appel-

lant relented and then poured out accounts

of his brother's dying in his arms in Viet

Nam, his wife's leaving him for another

man, his own mother's expressed hope that

he would die a hero so she could be proud

of him - and on and on in similar paranoid

vein.

conviction for aggravated kidnapping. We

cited Orosco v. State, 590 S.W.2d 121

(Tex.Cr.App. 1979) and Ex parte Curry,

490 S.W.2d 712 (Tex.Cr.App. 1979) and Ex

parte Curry, 590 S.W.2d 712 (Tex.Cr.App.

1979) for the proposition that “the

carving doctrine precluded convictions

for both aggravated robbery and ag-

gravated rape, where it was shown that

both offenses resulted from one con-

tinuous assaultive transaction against

the same victim.” It was noted that in

Orosco it was found that “where the use

and hibition of a knife provided the

aggravating circumstances in both of-

fenses, appellant could not be convicted

. in both.” Also relied on were Phillips

v. State, 59/ S.W.2d 929 (Tex.Cr.App.

1980) and Tatum v. State, 534 S.W.2d 678

(Tex.Cr.App. 1976), pointing out that the

latter hold that “convictions for three

offenses arising out of a single trans-

action against a single victim violated

the double jeopardy clauses of both the

State and Federal Constitutions," and

reversed two of the three convictions.

Our opinion of original submission was

delivered October 15, 1980 and the

State's motion for rehearing was ordered

filed and set for submission December 15,

1980; along with four other causes the

May 12, 1982 majority opinion on State's

motion for rehearing abandoned the

carving doctrine and opted for the "same

offense” test provided by the Supreme

Court of the United States in Blockburger

v. United States, 284 U.S. 299, 52 S.Ct.

180, 76 L.Ed. 306 (1932). 2/

However, dismissing it as dealing

with “other jeopardy matters...

[which] are not matters pertinent to the

decision in this case," Slip Opinion,

.2/ Ex parte McWilliams, 632 S.W.2d 574 (Tex.Cr.-

App. 1980-1982) was followed by Ex parte

Mike, 632 S.W.2d 594 (Tex.Cr.App. 1980-

1982); Ex parte Russell, 632 S.W.2d 596

(Tex.Cr.App. 1982); Ex parte Davis, 632

S.W.2d 597 (Tex.Cir.App. 1982) and Ex parte

Silvas, 632 S.W.2d 598 (Tex.Cir.App. 1982) -

all delivered the same day.

p. 6, the majority closed its eyes to the

following statement of jeopardy law in

Brown v. Ohio, 432 U.S. 161, 97 S.Ct.

2221, 53 L.Ed.2d 187 (1977):

"The Blockburger test is

P not the only standard for

determining whether successive

prosecutions impermissibly

involve the same offense. Even

if two offenses are sufficiently

different to permit the imposi-

tion of consecutive sentences,

successive prosecutions will be

barred in some circumstances

where the second prosecution

requires the relitigation of

factual issues already resolved

by the first. * * *

Because we conclude today

that a lesser included and

greater offense are the same

under Blockburger, we need not

decide whether the repetition of

proof required by the successive

prosecutions against Brown would

otherwise entitle him to the

additional protection offered by

Ashe and Nielsen."

Id. n.6, at U.S. 166-167. 3/

3/ The proposition of jeopardy law usually

Nielsen

Oklahoma , U.S. 682, 97 S.St. 2912, 53

L.Ed.2d 1054 (1977).

ole !

_ Oe

In the aggravated kidnapping case at

bar the State alleged and necessarily had

to prove that appellant abducted Mae

"with the intent to facilitate his own

flight after the commission of a felony,

to wit: Aggravated Robbery.” To show

the requisite to intent alleged, the

State bound itself to prove commission of

the offense of aggravated robbery of Mae.

Thus, the conviction for aggravated

kidnapping could not be had without

proving the same aggravated robbery for

which appellant had already been con-

victed. Under Nielsen appellant was

twice put in jeopardy for the same

offense. See Harris v. Oklahoma, supra.

Though the Court unwisely abandons

the carving doctrine, as I and Judge

Roberts have demonstrated in respective

dissenting opinions on State's motion for

rehearing, the majority is now about to

create new confusion among the bench and

the bar by pretending that Blockburger

provides the only test to determine

“whether successive prosecutions imper-

missibly involve the same offense,” and

by refusing to analyze the jeopardy

issues that come before us in light of

Nielsen, as well.

To such judicial follow, I must

dissent.

CLINTON, Judge

(Delivered July 14, 1982)

EN BANC

Onion, P.J. and Teague, J., join

B1.9

IV. DENIAL OF LEAVE TO

FILE SECOND MOTION

FOR REHEARING

IV. DENIAL OF LEAVE TO FILE

SECOND MOTION FOR REHEARING

Ex Parte Stephen McWilliams, No. 64,508

Tex. Crim. App-, July 14,1982) :

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK'S OFFICE

Austin, Texas, July 14, 1962

Dear Sir:

I have been instructed to advise that

the Court has this day denied "Leave to

File” the Appellant's 2nd Motion for

Rehearing in Cause No. 64,508 EX PARTE:

STEPHEN A. MCWILLIAMS

vs.

THE STATE OF TEXAS Appellee.

Sincerely yours,

THOMAS LOWE, Clerk

Bl.8

V. PETITION FOR WRIT

OF HABEAS CORPUS

V. PETITION FOR WRIT OF HABEAS

CORPUS, J. Y 1

VIII

Petitioner contends that the court in the

instant cases did not have the jurisdic-

tion to rule on the competency of this

petitioner to enter a plea of guilty. The

learned Trial Judge might have been highly

competent to sit as Judge in a court of

criminal law, but lacked all obvious

training and teachings to rule on the

competency of an individual's mental

stability, especially of an individual

with the type of background this petition-

er has, and was based solely, on two short

observations in court. By the trial Judge

failing to enter a psychiatric report into

the record at the time of the guilty plea

and merely “Assuming” this petitioner was

competent by relying on his own opinion of

the doctor as "A good man"; this petition-

er was completely denied Due Process and

Fundamental Fairness as warranted by the

constitution.

VIV

Petitioner contends that the attorney for

the State knowingly and intentionally

violated the holding of the “Carving

Doctrine” in which the Court of Criminal

Appeals has constantly held that, "Pro-

secutor is not barred from carving as

large an offense out of a single trans-

action as possible - but it may only

carve once". This is especially true

where three indictments and three sepa-

rate and distinct charges with three

convictions were had in the same court at

the same time, and by the same Judge, and

with the same attorneys, based on the

same evidence, yet arose out of a single

act against positive law.

,B1.15

VI. FIRST SUPPLEMENTAL PETITION

FOR WRIT OF HABEAS CORPUS

VI. FIRST SUPPLEMENTAL PETITION

FOR WRIT OF HABEAS CORPUS

FOR POST CONVICTION RELIEF

August 8, 1979

1,

In Cause Nos. 10,169, 10,170, and

10,17), Petitiorer was convicted of

aggravated robbery, aggravated rape, and

aggravated kidnapping, respectively. Such

offenses grew out of the same transaction

and Petitioner's conviction of aggravated

rape in Cause No. 10,170 and aggravated

kidnapping in Cause No. 10,171 are void

because said convictions were barred by

the doctrine of former jeopardy.

2.

On July 24, 1975, Petitioner pled

guilty to the offenses of aggravated

robbery, aggravated rape, and aggravated

kidnapping. Petitioner was not admonished

of the consequences of his pleas of guilty

to the offenses of aggravated rape in

Cause No. 10,170 and aggravated kidnapping

in Cause No. 10,171. As a consequence,

the judgments of conviction in Cause Nos.

10,170 and 10,171 are void and should be

set aside.

B1.16

VII. SECOND SUPPLEMENTAL P®T.L TION

FOR WRIT OF HABEAS CORPUS

VII. SECOND SUPPLEMENTAL

PETITION FOR WRIT OF

HABEAS CORPUS FOR POST

CONVICTION RELIEF.

November 19, 1979

1.

In Cause Nos. 10,169, 10.170, ana

10,171, Stephen A. McWilliams did not

enter pleas of guilty which were free and

voluntary and uninfluenced by any con-

sideration of fear or by any persuasion

because his mental condition and the

conditions of his confinement rendered him

psychologically incapable of entering

pleas which were voluntary and intel-

ligent.

2.

In Cause Nos.10,169, 10,170, and

10,171, Stephen A. McWilliams’ sanity was

raised as an issue prior to entry of his

pleas of guilty and the Court failed to

conduct a hearing on his sanity.

B1.17

VIII. SECOND MOTION

FOR REHEARING

VIII. SECOND MOTION

FOR REHEARING

Ex Parte Stephen McWilliams, No. 64,508

(Tex. Crim. App.)

Stephen A. McWilliams ("McWilliams"),

Applicant, files this his Second Motion

for Rehearing with respect to the Opinion

on State's Motion for Rehearing delivered

May 12, 1982 purporting to deny relief as

to the conviction in Cause No. 10,171

(aggravated kidnapping) and with respect

to portions of the Opinion delivered by

the Court of Criminal Appeals on October

15, 1980 denying relief as to the con-

viction in Cause No. 10,169 (aggravated

robbery) and in support thereof would

respectfully show as follows:

Assignments of Error

The Opinion on State's Motion for

Rehearing delivered herein on May 12, 1982

with respect to the conviction for ag-

gravated kidnapping in Cause No. 10,171 in

the 23rd Judicial Court of Fort Bend

County is erroneous in each of the follow-

ing respects:

FIRST POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN PURPORTING TO UPHOLD McWILLIAMS'

CONVICTION FOR AGGRAVATED KIDNAPPING

BECAUSE THIS CONVICTION VIOLATED THE

DOCTRINE AGAINST DOUBLE JEOPARDY IN THE

CONSTITUTIONS OF THE UNITED STATES AND

TEXAS.

SECOND POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN DENYING McWILLIAMS' PETITION FOR WRIT

OF HABEAS CORPUS AS TO HIS CONVICTION FOR

AGGRAVATED KIDNAPPING AND VIOLATED THE

DOCTRINES OF FORMER JEOPARDY, RES

JUDICATA, AND COLLATERAL ESTOPPEL BECAUSE

THE CONVICTION FOR AGGRAVATED KIDNAPPING

WAS SET ASIDE AND PROSECUTION ORDERED

DISMISSED ON OCTOBER 15, 1980.

THIRD POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN DENYING McWILLIAMS' PETITION FOR WRIT

OF HABEAS CORPUS RELIEF AS TO HIS CON-

VICTION FOR AGGRAVATED KIDNAPPING AND

VIOLATED HIS RIGHT TO DUE PROCESS OF LAW

AND EQUAL PROTECTION OF THE LAWS UNDER THE

CONSTITUTIONS OF THE UNITED STATES AND

TEXAS BECAUSE THE COURT REVERSED ITS PRIOR

OPINION WITHOUT PROVIDING MCWILLIAMS AN

OPPORTUNITY FOR A HEARING.

FOURTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN DENYING McCWILLIAMS' PETITION FOR WRIT

OF HABEAS CORPUS RELIEF AS TO HIS CON-

VICTION FOR AGGRAVATED KIDNAPPING BECAUSE

THE COURT REJECTED THE CARVING DOCTRINE

AND APPLIED ITS NEW RULE OF LAW RETROAC-

TIVELY AND AS AN EX POST FACTO LAW IN

VIOLATION OF THE CONSTITUTIONS OF THE

UNITED STATES AND TEXAS.

FIFTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN HOLDING THAT DETERRENCE OF CRIME IS A

COMPELLING REASON TO REJECT THE CARVING

DOCTRINE.

SIXTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN HOLDING THAT THE DOCTRINE OF CARVING IS

NOT MANDATED BY THE DOUBLE JEOPARDY

CLAUSES OF THE CONSTITUTIONS OF THE UNITED

STATES AND TEXAS.

SEVENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN REJECTING THE CARVING DOCTRINE BECAUSE

IT WAS ALLEGEDLY ONLY APPLIED IN TEXAS.

EIGHTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN REJECTING THE CARVING DOCTRINE BECAUSE

IT HAS BEEN STATED AND APPLIED INCONSIS-

TENTLY IN PRIOR CASES.

NINTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN REJECTING THE CARVING DOCTRINE ON THE

° GROUND THAT SUCH WAS THE INTENT OF THE

TEXAS LEGISLATURE.

: TENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN ADOPTING A RULE OF DETERMINING DOUBLE

JEOPARDY ON A “SAME OFFENSE" AS OPPOSED TO

A “SAME TRANSACTION" BASIS.

The Opinion of the Court of Criminal

Appeals delivered herein on October 15,

1980 with respect to the conviction for

ote

——————————a—eeE= OO eee

aggravated robbery in Cause No. 10,169 in

the 23rd Judicial District Court of Fort

Bend County is erroneous as set forth

below. To the extent that the Opinion on

State's Motion for Rehearing reinstates

McWilliams’ conviction for aggravated

kidnapping, it is likewise erroneous for

the following reasons previously set forth

in McWilliams' Motion for Rehearing as to

his conviction for aggravated robbery.

ELEVENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

BECAUSE THE COURT FAILED TO CONSIDER

PARAGRAPH 1 OF PETITIONER'S SECOND SUPPLE-

MENTAL PETITION FOR WRIT OF HABEAS CORPUS

FOR POST CONVICTION RELIEF AND EVIDENCE IN

SUPPORT THEREOF WHICH SHOWED THAT

MCWILLIAMS WAS IN FACT NOT MENTALLY

COMPETENT AT THE TIME HE ENTERED HIS

GUILTY PLEA.

TWELFTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN HOLDING THAT THERE WAS NO EVIDENCE

OFFERED AS TO INEFFECTIVENESS OF COUNSEL

AT THE EVIDENTIARY HEARING IN CONNECTION

WITH PETITIONER'S APPLICATION BECAUSE

McWILLIAMS CLAIMED THAT COUNSEL WAS

INEFFECTIVE INTER ALIA FOR FAILING TO

OBTAIN PRIOR MEDICAL RECORDS AND COUNSEL

STATED ON THE RECORD AT THE GUILTY PLEA

HEARING THAT HE DID NOT KNOW WHAT WAS SAID

BY PRIOR TREATING PSYCHIATRISTS.

THIRTEENTH POINT

THE COURT OF CRIMINAL APPEALS #RRED

IN HOLDING THAT THE TRIAL COURT WAS

RELIEVED OF ANY RESPONSIBILITY TO HOLD A

PRETRIAL HEARING AS TO MENTAL COMPETENCE

BY VIRTUE OF McWILLIAMS'S ANNOUNCEMENT OF

READY AND ENTRY OF A GUILTY PLEA WITHOUT

ANY SUGGESTION OF INCOMPETENCY BECAUSE

COMPETENCY IS NON-WAIVABLE.

FOURTEENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN HOLDING THAT A BONA FIDE DOUBT AS TO

MCWILLIAMS' MENTAL COMPETENCY WAS NOT

RAISED AT THE TIME OF HIS GUILTY PLEA SO

AS TO REQUIRE THAT A SEPARATE JURY TRIAL

BE HELD TO DETERMINE HIS COMPETENCY.

FIFTEENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN THAT IT DID NOT CONSIDER AS EVIDENCE

RAISING THE ISSUE OF LACK OF MENTAL

COMPETENCY AT THE TIME OF McWILLIAMS'

GUILTY PLEA THE STATEMENTS CONTAINED IN A

PSYCHIATRIC REPORT ADMITTED INTO EVIDENCE

(i) THAT MCWILLIAMS HAD ATTEMPTED SUICIDE

AND (ii) THAT McWILLIAMS WAS SENT TO A

MENTAL HOSPITAL BY A COURT.

SIXTEENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN HOLDING THAT THERE WAS AN ADEQUATE

EXPLANATION OF MCWILLIAMS' PREVIOUS

ADMISSIONS TO A MENTAL HOSPITAL SUCH AS TO

OBVIATE THE NEED OF A SEPARATE TRIAL TO

DETERMINE HIS MENTAL COMPETENCY BECAUSE

NEITHER MCWILLIAMS, HIS COUNSEL, NOR THE

EXAMINING PSYCHIATRIST E’PLAINED THOSE

HOSPITALIZATIONS TO THE COURT.

SEVENTEENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN FAILING TO HOLD THAT McWILLIAMS' PRIOR

ADJUDICATION OF MENTAL INCOMPETENCY, WHICH

HAD NOT BEEN SET ASIDE, RAISED A PRE-

SUMPTION OF MENTAL INCOMPETENCY.

EIGHTEENTH POINT

THE COURT OF CRIMINAL APPEALS ERRED

IN THAT IT DID NOT APPLY THE "NO EVIDENCE”

TEST TO DETERMINE THE QUANTUM OF EVIDENCE

WHICH WAS NECESSARY TO RAISE THE ISSUE OF

LACK OF MENTAL COMPETENCE.

REQUEST FOR ORAL ARGUMENT

Petitioner, Stephen A. McWilliams,

respectfully requests the opportunity to

present oral argument to this Court of

Criminal Appeals in connection with his

Second Motion for Rehearinc.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED,

Stephen A. McWilliams Petitioner, prays

that this Second Motion for Rehearing be

granted and that the Court change and

revise its Opinion delivered October 15,

1980 and its Opinion on State's Motion for

Rehearing delivered May 12, 1982 so as to

correct the errors made by it as herein

set forth and dismiss the indictments in

Cause No. 10,169 for aggravated robbery

and in Cause No. 10,171 for aggravated

kidnapping. In the alternative, Petition-

er prays that the Court dismiss the

indictments in Cause Nos. 10,169 and

10,171, and remand this case for a new

trial, or, alternatively, order that a

jury trial be had to determine whether

McWilliams was mentally competent at the

time he entered his guilty pleas in Cause

Nos. 10,169 and 10,171 and, if a retroac-

tive determination of competence cannot be

made, that a new trial in Cause Nos.

10,169 and 10,171 be held or, alternative-

ly, order a full and complete hearing in

connection with this Writ of Habeas Corpus

on the question of whether McWilliams was

mentally incompetent at the time he

entered his guilty pleas in Cause Nos.

10,169 and 10,171 and for such other and

further relief to which McWilliams may

show himself entitled.

Respectfully submitted,

BUTLER, BINION, RICE, COOK

& KNAPP

ROBERT L. KETCHAND

State Bar No. 11362500

1747 Penn. Ave., N.W.

Suite 900

Washington, D.C. 20006

(202) 466-6900

Attorney for

Stephen A. McWilliams

CERTIFICATE OF SERVICE

This is to certify that a true and

correct copy of the above and foregoing

Second Motion fer Rehearing was mailed by

certified maii, return receipt requested,

to Mr. nobert Huttash, State Prosecuting

Attorney P.O. Box 12405, Austin, Texas

78711 and to Ms. Jeanie Kitchens,

Assistant District Attorney, Fort Bend

County Courthouse, Richmond, Texas 77469

on this 18th day of May, 1982.

L. HAND

B1.19

CERTIFICATE OF SERVICE

I, Robert L. Ketchand, the attorney

for the Petitioner, herein, and a member

of the Bar of the Supreme Court of the

United i ao hereby certify that, on

the — day of September, 1982,

serv g ree copies of the foregoing

Appendix to Petition for Writ of

Certiorari to Mr. Robert Huttash, State

Prosecuting Attorney P.O. Box 12405,

Austin, Texas 78711 and to Mr. William

Meitzen, District Attorney, Fort Bend

County Courthouse, Richmond, Texas 77469

by first class United States mail, cer-

tified and postage prepaid in accordance

with Rule 28.3 of the Rules of the Supreme

Court.

ROBERT L. K HAND

Counsel of Record for

Petitioner