Drake v. State

Decision Date27 February 1985
Docket NumberNo. 148-84,148-84
Citation686 S.W.2d 935
PartiesAnthony Chris DRAKE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Bruce L. Roberts, Waco, for appellant.

Vic Feazell, Dist. Atty., Dennis Green, Robert Pandak and Kenneth R. Bennett, Asst. Dist. Attys., Waco, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



In the criminal law jurisprudence of this State a first principle is that in every criminal action tried before a jury the verdict must be "general," and if the plea is not guilty the jury must find that the accused is either guilty or not guilty; regardless of allegations in a charging instrument, a consequence of a general verdict of "guilty" is a judgment of conviction of but one offense and imposition of but one sentence. Today, we decide whether that principle and its consequence remain valid.

In a three count indictment, appellant was charged in paragraph I of count I with the attempted capital murder of Police Officer Benton Thurman; paragraph II of count I alleged a deadly assault upon Officer Thurman; count II alleged the attempted capital murder of Officer Jimmy Stone; count III, paragraphs I and II, alleged the offenses of burglary of a building and felony theft. Following these counts, the indictment alleged that the offenses were all separate offenses and were offenses which were committed by appellant "as part of the same criminal episode or transaction." 1

All the charges were tried together in one jury trial. Prior to the submission of the case to the jury, the State abandoned all counts and charges alleged in the indictment except the charges of attempted capital murder against the two officers. The jury found appellant guilty of both offenses and assessed punishment at confinement in the Texas Department of Corrections for a period of 25 years for each offense. The trial judge ordered that the sentences be cumulated.

On December 22, 1983, in its Cause No. 10-83-057-CR, the Waco Court of Appeals, with an unpublished opinion, affirmed the judgment of two convictions. We granted appellant's petition for discretionary review to determine whether the court of appeals correctly overruled appellant's complaint that the trial court erred by convicting him of both attempted capital murder offenses since both were alleged in a single indictment.

Appellant asserts that it was error for the trial court to permit multiple, nonproperty offense convictions arising from a single indictment and that such error is fundamental. The court of appeals held that since appellant did not move to quash the indictment, the error was waived, citing Munoz v. State, 169 Tex.Cr.R. 181, 333 S.W.2d 148 (1960); Hill v. State, 169 Tex.Cr.R. 104, 332 S.W.2d 579 (1960); Hood v. State, 169 Tex.Cr.R. 422, 334 S.W.2d 302 (1960). In its brief, the State concedes there are cases holding that obtaining two such convictions from one indictment is improper, but argues that the error is not fundamental in light of this Court's abandoning the carving doctrine in Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1980) (Opinion on State's Motion for Rehearing).

There is much more involved in this cause than those competing positions, however. From the format and content of the single indictment one may deduce that an objective of the State, through its local district attorney, is to achieve judicial approval of its prosecuting, convicting and punishing an accused for two or more distinctly proscribed offenses in one trial on a single indictment. See also Siller v. State, 686 S.W.2d 617 (Tex.Cr.App., delivered this day). At the threshold we see problems with one contention made by the State.

First is a matter of terminology. Article 27.05, V.A.C.C.P., uses the term "criminal episode," but it is not defined in the procedural code. Outside of V.T.C.A. Penal Code, Chapter 3, the term is used sparingly in the penal code. See, e.g., § 22.021(a)(5): sexual assault becomes aggravated when the person uses or exhibits a deadly weapon "in the course of the same criminal episode." It is defined only in § 3.01--"the repeated commission of any one offense defined in Chapter 7 of this code (Offenses Against Property)"--and that definition is only for purposes of Chapter 3. See Boutwell v. State, 653 S.W.2d 108, 110-111, n. 1 (Tex.App.--Austin 1983), review granted on other grounds and pending. Accordingly, unless Chapter 3 is implicated, practitioners and courts would be well advised to avoid loosely using the term "criminal episode."

Secondly, no one has mentioned that the court of appeals found:

"The offenses [of attempted capital murder] were distinct assaults against two different persons, sufficiently separated by time and place so that prosecution for both was not in violation of State and Federal constitutional double jeopardy provisions. Ex parte McWilliams [634 S.W.2d 815, 823 (Tex.Cr.App.1982) ]; Meeks v. State 653 S.W.2d 6, 11 (fn. 4) (Tex.Cr.App.1983)."

Its conclusion about jeopardy aside, the factual findings made by the court demonstrate, notwithstanding a contrary assertion by the pleader in this indictment, that the two counts respectively alleging attempted capital murder of Officer Thurman and attempted capital murder of Officer Stone arose out of different "transactions." Which brings us to the late carving doctrine, and the third problem.

When the Supreme Court of Texas possessed jurisdiction over criminal cases, it expressly recognized the doctrine. In Jackson v. The State, 43 Tex. 421 (1875), the Supreme Court noted in passing, "It is a general rule that a party may in a criminal proceeding be held to answer for any offense, great or small, which can legally be carved out of the transaction," and cited 1 Bishop in Criminal Law, 536. Then in Wilson v. The State, 45 Tex. 76 (1876) the Supreme Court found that the great weight of American authorities supported the conclusion it was about to reach. Included among cited authorities is an Indiana decision, Jackson v. State, 14 Ind. 327, from which the Supreme Court extracted the following:

"The State cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based on the whole or part of the crime."

Wilson, supra, at 83. The conclusion reached is:

"[W]hen 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 transaction as a distinct offense. A conviction on one of the indictments bars prosecution on the other."


Contemporaneously, 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). The Court relied on and discussed Wilson v. The State, supra, and several other authorities.

In Simco v. The State, 9 Tex.App. 338 (Ct.App.1880), Presiding Judge White opined for the Court why once an accused who stole simultaneously three horses, each belonging to a different owner, and had been convicted for theft of any one of them, could not be legally convicted for theft of the other two, viz:

"Because the transaction--the taking of the three horses at the same time--would constitute 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 v. The State, 1 Texas Ct.App. 47. Here is where the doctrine of carving would come in and support the plea. [References to Wharton on Criminal Law and authorities cited by him, omitted.]"

Simco, supra, at 349. To the same effect is Wright v. The State, 17 Tex.App. 152 (Ct.App.1884), in which Presiding Judge White posited a similar taking of cattle of two different owners at the same time and a prior conviction pertaining to one owner, and explained there could not be second trial for taking cattle of the other owner--

"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 doctrine of carving ... which makes this distinction between the plea of autrefois acquit and autrefois convict where several ostensible crimes are covered by a single transaction."

Wright, supra, at 159. See also Hirshfield v. The State, 11 Tex.App. 207, 215 (Ct.App.1881).

Essential to the carving doctrine, then, is that there be just one transaction. In the instant cause the court of appeals correctly found there are two transactions. See Ashton v. State, 31 Tex.Cr.R. 482, 21 S.W. 48 (1893); Lillie v. State, 79 Tex.Cr.R. 615, 187 S.W. 482 (1916). Since the carving doctrine was never applicable to offenses arising out of different transactions, its passing cannot affect the State's prosecuting, convicting and punishing an accused in accordance with other rules. 2 However, assuming that there are not two transactions but only one, the State asserts that "in the absence of the 'carving doctrine' a defendant may be indicted separately and tried for each offense committed in the same ... transaction," and asks, "Why then, absent objection by the defense, should it not be permissible to obtain the same object with one piece of paper instead of two?"

The answer lies in another distinctly different set of rules, independent of the carving doctrine, governing joinder of offenses; it implicates statutory provisions and...

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