Ex parte Birl, 53480

Decision Date12 January 1977
Docket NumberNo. 53480,53480
Citation545 S.W.2d 169
PartiesEx parte Norman Lee BIRL.
CourtTexas Court of Criminal Appeals
OPINION

PHILLIPS, Judge.

This is a post conviction application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P., in which petitioner alleges a violation of the double jeopardy provision of the state and federal constitutions.

On October 23, 1972, petitioner pled guilty in Criminal District Court No. 2 of Dallas County to robbery in Cause No. C72--1597--JI and to murder with malice in Cause No. C72--1598--JI. The court assessed punishment at life imprisonment in each case. No appeal was taken from either conviction.

Petitioner's application for writ of habeas corpus alleges both offenses arose out of the same transaction and involved the same victim, thus the State should have been allowed to carve only one offense. Copies of the indictments, judgments and sentences in the two cases show both offenses occurred on January 16, 1972, and involved Wallace Page. Pursuant to an order of this Court, an evidentiary hearing was held to develop the facts and circumstances surrounding the two offenses.

Petitioner testified that on January 16, 1972, he entered a small grocery store, shot the clerk and then robbed him. To rebut this testimony, the State introduced a confession petitioner made to the police on January 27, 1972, in which he stated that he and Joe McNary entered the store, Joe took money from the cash register, and handed the gun to petitioner. The confession recited:

'. . . As I started out the door I saw the man behind the counter move. I didn't know if the man was getting up, getting a gun or what. I reached over the counter and shot the man two to (sic) three times . . .'

The trial court entered findings of fact and conclusions of law and recommended that relief be granted and one of the convictions be dismissed. The trial court's findings of fact were as follows:

'a. Petitioner's written confession, given to the police following his arrest, is true and credible. (State's Exhibit No. 1)

b. That the robbery and murder to which Petitioner confessed were a continuous assault.

c. That the Petitioner's action of going to the door of the store and then returning to shoot the storekeeper did not sufficiently interrupt the flow of the assault to constitute two separate assaults . . .'

In Hawkins v. State, 535 S.W.2d 359, this Court reviewed the recent cases interpreting the doctrine of carving and said, 'The common factor has been an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.' Hawkins at page 362.

In Lamberson v. State, 509 S.W.2d 328, this Court held a robbery and murder of the same victim involved two separate transactions, because the two offenses were not committed in the same place and over 30 minutes elapsed between the robbery and the murder. More recently in Ex parte Caldwell, 537 S.W.2d 265, we held a robbery and rape perpetrated on a single victim did not occur in a single transaction and the two offenses were not committed in the same place or at the same time. In Caldwell, two men approached the prosecutrix as she was leaving a store. They forced her to re-enter the building, made several threats, and made her call her employer for the combination of the safe. The two men made several unsuccessful attempts to open the safe. The prosecutrix was then taken to a back room by one of the men, where she was raped and tied up. Under the facts of that case, the act of taking her to another room and raping her was held to be a separate assault.

In Harris v. State, Tex.Cr.App., 516 S.W.2d 931, the defendant was convicted of robbery of a service station attendant and of murder of a...

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  • Rubino v. Lynaugh
    • United States
    • Texas Court of Criminal Appeals
    • April 26, 1989
    ...to champion its cause. The State invokes Ex parte Caldwell, 537 S.W.2d 265 (Tex.Cr.App.1976), while petitioner submits Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977). In Ex parte Caldwell, supra, the Court "The record reflects two separate assaults by [the defendant] upon the complainant. ......
  • Rice v. State, s. 54005
    • United States
    • Texas Court of Criminal Appeals
    • March 23, 1977
    ...in Cause No. 193348 were valid and prior in time to the conviction for possession of cocaine in Cause No. 193352. See Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Adams, The judgment and sentence in Cause No. 193352 are set aside and the indictment in that case is dismissed. We......
  • Robinson v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 13, 1977
    ...one. See and cf. Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974); Ex parte Adams, 541 S.W.2d 440 (Tex.Cr.App.1976); Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977). Using the same rationale in the instant case, we hold that the judgment and sentence are applicable to the first count of ......
  • Weatherly v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 25, 1987
    ...of time as part of a continuous harangue ..." Id. 600 P.2d at 113. Held: one conviction for assault set aside); and Ex Parte Birl, 545 S.W.2d 169 (Tex.Crim.App.1977) (passage of a few seconds is not sufficient itself to interrupt a transaction as to allow carving of two or more offenses fro......
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