Ex Parte Scott , 1982 Tex. Crim. App. LEXIS 949 ( 1982 )

CLINTON, Judge,

dissenting.

This application for a writ of habeas corpus for postconviction relief under Article 11.07, V.A.C.C.P., again demonstrates that though a majority of the Court has abandoned the carving doctrine, constitutional jeopardy protections have not been jettisoned ¹ and must be addressed on a case by case basis.²

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Opinion of the Court pointed out:

“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition 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 a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by successive prosecutions against Brown would otherwise entitle him to the additional protections offered by Ashe and Nielsen.”³ Id., n. 6, 166-167, 97 S.Ct. n. 2226.

Applicant shows that he was separately tried and convicted first for the offense of aggravated rape and then for the offense of robbery.⁴ After an evidentiary hearing ordered by this Court the habeas court found, inter alia, that both offenses “arose out of the same criminal transaction,”⁵ and it seems clear enough from the record that the aggravating element in committing rape — “by threatening the imminent infliction of serious bodily injury and death”— also accomplished the robbery: did “threaten and place the Complainant in fear of imminent bodily injury and death.”

Notwithstanding the demise of the carving doctrine, applicant is entitled to that relief under jeopardy principles of both the Jeopardy Clause of the Fifth Amendment to the Constitution of the United States and of Section 14 of the Bill of Rights in the Constitution of the State of Texas.

Without any doubt both offenses in this all too commonplace situation occurred during one “episode.” The “additional protection” offered by In re Nielsen, supra, flows from its statement of the rule:. “[A] person [who] has been tried and convicted for a crime which has various incidents included in it ... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense,” id., 131 U.S. at 188, 9 S.Ct. at 676. Here, as in Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979) the same conduct, threatening to take life, “must provide the aggravating circumstances in both the rape and the robbery,” id., at 124. “The inhibition against double jeopardy is determined by the facts and circumstances and not by the name of the offense,” Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, 405 (1936) (Opinion on Rehearing). Accordingly, “[cjonviction for both the rape and the robbery is violative of the double jeopardy clauses of both the state and federal constitutions,” Orosco, id., at 124.

Because the Court does not grant relief under the Nielsen formulation and its application in, e.g., Doggett v. State and Orosco v. State, both supra, I must again dissent.⁶

ONION, P. J., and ROBERTS and TEAGUE, JJ., join in this opinion.

1 . The writer dissented as vigorously as deference toward opposing views permits in Ex parte McWilliams, 632 S.W.2d 574 (Tex.Cr.App.1982), calling attention to the existence of extant jeopardy standards other than Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which a majority of the Court embraced in McWilliams, supra. (Dissenting Opinion, p. 826.)

2 . See and compare the immediately delivered progeny of McWilliams, e.g., Ex parte Williams, 634 S.W.2d 727 (Tex.Cr.App.1982); Ex parte Rogers, 632 S.W.2d 748 (Tex.Cr.App.); Ex parte Jones, 634 S.W.2d 728 (Tex.Cr.App.1982).

3 . Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). (All emphasis is added by the writer of this opinion unless otherwise indicated.)

4 . Applicant swears that he and a confederate abducted the victim as she was returning to her car near the Harris County Courthouse by forcing her into the car and driving her in and about Houston while committing aggravated rape and robbery against her.

5 .The quote is the finding of the habeas court. To avoid trenching on the rejection in McWil-liams of the notion of “transaction” that is said to underlie the carving doctrine, the better term in jeopardy cases may be “episode,” as I suggested in Ex parte Williams and Ex parte Rogers, supra. But see the accepted definition of autrefois convict: “Autrefois convict only requires that the transaction, or the facts constituting it, be the same,” Simco v. The State, 9 Tex.App. 338 (Ct.App.1880).

6 . By adhering to McWilliams in cases such as this one the majority must believe that its dispatch of the carving doctrine subsumed all extant jeopardy principles other than the single one enunciated in Blockburger, for it is steadfastly refusing even to mention them. Ignoring them now, I respectfully suggest, presages troubles of constitutional dimension in store for the bench and the bar of this State.