# Appendix — McWilliams v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0767%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1036 ## Text 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 -10- _——— 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 -20- 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. -23- 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 -24- 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