carving doctrine in Texas

2022The court of criminal appeals abandoned the carving doctrine, including the “same transaction” analysis, in Ex parte McWilliams, 634 S.W.2d 815, 822-23 (Tex. Crim.

2015As such Ex Parte Clay and other cases in conflict with this decision are overruled. 4 The carving doctrine was abandoned in Ex Parte Mcwilliams, 634 S.W.2d 815 (Tex. Crim.

2015Thus, Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978), on which this Court relies, begins its discussion by quoting language in Vannerson v. State, 408 S.W.2d 228, 229 (Tex.Crim.App.1966) stating the carving doctrine (“… ‘the court instead of compelling an election may submit each of the courts to the jury with the instruction that a conviction 13 could be had on only one of them.[] No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only.”) 573 S.W.2d at 197 .

2015Thus, Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978), on which this Court relies, begins its discussion by quoting language in Vannerson v. State, 408 S.W.2d 228, 229 (Tex.Crim.App.1966) stating the carving doctrine (“… ‘the court instead of compelling an election may submit each of the courts to the jury with the instruction that a conviction 13 could be had on only one of them.[] No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only.”) 573 S.W.2d at 197 .

2014App. 1974), Ex parte Calderon, 508 S.W.2d 360 (Tex. Crim.

1979In Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360 , the Court wrote: “Under the doctrine of carving, if a continuous assault is made on the same person in the same transaction, the State can carve but one conviction out of the event.

1983Sanders cites cases, for example, Ex Parte Curry, 590 S.W.2d 712 (Tex.Cr.App.1979), and Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979), holding that the carving doctrine precluded convictions for aggravated robbery and aggravated rape, where it was shown that both offenses resulted from one continuous assaultive transaction against the same victim.

1982We cited Orosco v. State, 590 S.W.2d 121 (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 aggravated rape, where it was shown that both offenses resulted from one continuous assaultive transaction against the same victim.” It was noted that in Orosco it was found that “where the use and exhibition of a knife provided the aggravating circumstances in both offenses, appellant could not be convicted in both.” Also relied on were Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1

1982Uribe v. State, 573 S.W.2d 819, 820-21 (Tex.Cr.App.1978); Hawkins v. State, 535 S.W.2d 359, 360-62 (Tex.Cr.App.1976); Robinson v. State, 530 S.W.2d 592, 593 (Tex.Cr.App.1975).

1977In reviewing recent-cases interpreting the doctrine of carving, this Court in Hawkins v. State, 535 S.W.2d 359 said, “The common factor has been an uninterrupted and continuous sequence of events or as-saultive acts directed toward a single victim.” See Ex parte Birl, Tex.Cr.App., 545 S.W.2d 169 . *337 The instant case is more like Harris v. State, Tex.Cr.App., 516 S.W.2d 931 , where the defendant left his car, entered a service station and robbed the attendant.

1986I stated the following in the dissenting opinion that I filed in Hankins, supra: “In any event, the mighty circumstantial evidence charge in our law is now consigned by the majority opinion to its death and burial in the refuse heap of Texas law, preceded in death only recently by the doctrine of carving.

1986See Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983) (abolition of the necessity to ever charge on the law of circumstantial evidence); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (opinion on State’s motion for rehearing) (abolition of the carving doctrine); Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981) (authorizing the right of the State to appeal in certain circumstances despite constitutional and statutory prohibitions).” In Hypolite, supra, a majority of this Court abolished the rule of law that a motion to dismiss the appeal had to be notarized.

1982Defined offenses are not the “same act” under the double jeopardy clause if each requires proof of an additional fact that the other does not, Ex parte Joseph, 558 S.W.2d 891, 893 (Tex.Cr.App.1977); and, under the carving- doctrine as applied in this State, separate and distinct offenses complete within themselves, although committed one after the other, do not constitute the same transaction, but separate transactions not viola-tive of the carving doctrine.

1978Further, as regards appellant’s contention that the present prosecution is barred by the carving doctrine, we noted in Ex parte Joseph, supra: “Under the carving doctrine as applied in this State, a person cannot be convicted of different parts of a single transaction, though said parts are in contemplation of law distinct offenses.

2004Whitford, 6 S.W. at 537 . [4] Under the carving doctrine the "general rule" was "a party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of a transaction." Jackson v. State, 43 Tex. 421, 423 (1875). [5] For example, "we find that all of the elements necessary to charge the offense of assault with intent to rob are contained in the indictment charging the offense of robbery by assault against the principal." Tomlin v. State, 155 Tex.Crim. 207 , 233 S.W.2d 303, 304 (1950) (emphasis added). [6] For example, "Under the doctrine of car

2004Whitford, 6 S.W. at 537 . [4] Under the carving doctrine the "general rule" was "a party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of a transaction." Jackson v. State, 43 Tex. 421, 423 (1875). [5] For example, "we find that all of the elements necessary to charge the offense of assault with intent to rob are contained in the indictment charging the offense of robbery by assault against the principal." Tomlin v. State, 155 Tex.Crim. 207 , 233 S.W.2d 303, 304 (1950) (emphasis added). [6] For example, "Under the doctrine of car

2004Under the carving doctrine the “general rule” was "a party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of a transaction.” Jackson v. State, 43 Tex. 421, 423 (1875). .

2004Whitford, 6 S.W. at 537 . [4] Under the carving doctrine the "general rule" was "a party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of a transaction." Jackson v. State, 43 Tex. 421, 423 (1875). [5] For example, "we find that all of the elements necessary to charge the offense of assault with intent to rob are contained in the indictment charging the offense of robbery by assault against the principal." Tomlin v. State, 155 Tex.Crim. 207 , 233 S.W.2d 303, 304 (1950) (emphasis added). [6] For example, "Under the doctrine of car

2004For example, "Under the doctrine of carving in this State the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once, and the State can carve but one conviction for the same offense.” Fleming v. State, 168 Tex.Crim. 595 , 330 S.W.2d 457, 459 (1959) (emphasis added). .

2004For example, "Under the doctrine of carving in this State the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once, and the State can carve but one conviction for the same offense.” Fleming v. State, 168 Tex.Crim. 595 , 330 S.W.2d 457, 459 (1959) (emphasis added). .

2017App. 1982) (op. on reh'g) (holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions); Blockburger v. United States , 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

2017App. 1982) (op. on reh'g) (holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions); Blockburger v. United States , 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

1982In Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970) defendant’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 defendant’s conviction of assault with intent to murder.

1982In Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970) defendant'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 defendant's conviction of assault with intent to murder.

1979While Herera v. State, 35 Tex.Cr.R. 607 , 34 S.W. 943 (Tex.Cr.App.1896) did not originate the carving doctrine, the opinion states it in a manner that has been often quoted: "[W]hen one transaction is presented to the government, which may include distinct criminal offenses by different names, the government can carve but once.

1979While Herera v. State, 35 Tex.Cr.R. 607 , 34 S.W. 943 (Tex.Cr.App.1896) did not originate the carving doctrine, the opinion states it in a manner that has been often quoted: "[W]hen one transaction is presented to the government, which may include distinct criminal offenses by different names, the government can carve but once.

1994The carving doctrine allowed the prosecution to carve the largest or most serious crime out of a series of crimes that were part of a single criminal transaction; this doctrine was abolished in Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex.Crim.App.1980) (opinion on rehearing) (defendant convicted of aggravated kidnapping, aggravated robbeiy, and aggravated robbery within the same criminal episode), cert. denied, 459 U.S. 1036 , 103 S.Ct. 447 , 74 L.Ed.2d 602 (1982).

1994The carving doctrine allowed the prosecution to carve the largest or most serious crime out of a series of crimes that were part of a single criminal transaction; this doctrine was abolished in Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex.Crim.App.1980) (opinion on rehearing) (defendant convicted of aggravated kidnapping, aggravated robbeiy, and aggravated robbery within the same criminal episode), cert. denied, 459 U.S. 1036 , 103 S.Ct. 447 , 74 L.Ed.2d 602 (1982).

1994The carving doctrine allowed the prosecution to carve the largest or most serious crime out of a series of crimes that were part of a single criminal transaction; this doctrine was abolished in Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex.Crim.App.1980) (opinion on rehearing) (defendant convicted of aggravated kidnapping, aggravated robbeiy, and aggravated robbery within the same criminal episode), cert. denied, 459 U.S. 1036 , 103 S.Ct. 447 , 74 L.Ed.2d 602 (1982).

1991See Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982), cer t. denied, 459 U.S. 1036 , 103 S.Ct. 447 , 74 L.Ed.2d 602 (1982) (abolishing the carving doctrine in Texas).

1993Ex parte Jewel, 535 S.W.2d at 364 .

1976In Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976), this Court held that the robbery by firearms conviction must be vacated since petitioner therein had been previously convicted of the murder of Fred Wright, which occurred during the robbery, for the reason that the subsequent prosecution would have been barred by the carving doctrine as set out in Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).

1985Contemporaneously, then Presiding Judge White wrote for the former court of appeals what seems to be the first shorthand rendition of the carving doctrine in our criminal law jurisprudence, viz: "The prosecutor had a right to carve as large an offense out of this transaction as he could, but yet must cut only once. " Quitzow v. The State, 1 Tex.App. 47 , 53-54 (Ct.App.1876).

1985Contemporaneously, then Presiding Judge White wrote for the former court of appeals what seems to be the first shorthand rendition of the carving doctrine in our criminal law jurisprudence, viz: “The prosecutor had a right to carve as large an offense out of this transaction as he could, but yet must cut only once.” Quitzow v. The State, 1 Tex.App. 47 , 53-54 (Ct.App.1876).

1993A few years ago, in Clay v. Lynaugh, 846 F.2d 8 (5th Cir.1988), and Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir.1988), the United States Fifth Circuit Court of Appeals held that ex post facto prohibitions of the federal constitution forbade this Court’s attempt to abolish the carving doctrine retroactively. 2 As it turns out, these opinions were not reasoned in a constitutionally acceptable way, and they are currently of little precedential value in light of Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990). 3 But it *588 does not follow that a retroactive abandonment o

1989On federal habeas review the Fifth Circuit Court of Appeals ruled, however, that “[i]f the carving doctrine would have barred Clay’s second conviction, the Texas court denied him due process and undermined the constitutional prohibition against ex post facto laws in applying retroactively the elimination of the doctrine to affirm the conviction.” Clay v. Lynaugh, 846 F.2d 8, 9 (CA5 1988).

1993Id. at 365 ; Ex parte Scelles, 511 S.W.2d at 302 .

1982See Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974).