Ex Parte Barron

568 S.W.2d 362 (1978)

Ex parte Benito Salazar BARRON.

No. 58599.

Court of Criminal Appeals of Texas, Panel No. 2.

July 19, 1978.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, Vernon's Ann.C.C.P.

On March 26, 1969, appellant waived trial by jury and entered a plea of guilty before the court to indictment No. C-69-149-LI which charged him with the offense of murder with malice aforethought. On the same day he entered a plea of guilty before the court to the offense of robbery by assault, a lesser included offense, alleged in the indictment in Cause No. C-69-1486-LI. Punishment in each case was assessed at life imprisonment.

On May 14, 1978, appellant filed his application for writ of habeas corpus in the trial court in which he alleged that his conviction for robbery by assault in Cause No. C-69-1486-LI violated the carving doctrine, since both the murder and robbery convictions arose out of the same transaction. After reviewing all the records in both causes, the trial judge found that the murder and robbery convictions were the result of "a continuous and uninterrupted assaultive transaction directed at a single victim in the same place at the same time." The trial court recommended that the judgment and sentence in the robbery by assault case be voided and set aside and the indictment in that cause dismissed. The findings and recommendation were approved by attorneys for petitioner and the State.

We accept the findings, conclusions, and recommendations of the trial court, which are not contested by the State. Consequently, it is ordered that the judgment and sentence convicting appellant of robbery by assault in Cause No. C-69-1486-LI is set aside and declared to be void, and the indictment in that cause is ordered dismissed. See Ex parte Olson, 560 S.W.2d 688 (Tex.Cr. App.1978), and cases there cited. Nothing herein affects the validity of appellant's conviction for murder with malice aforethought in Cause No. C-69-149-LI.

It is so ordered.