Ex parte Joseph, 56259
| Decision Date | 14 December 1977 |
| Docket Number | No. 56259,56259 |
| Citation | 558 S.W.2d 891 |
| Parties | Ex parte Melvin James JOSEPH. |
| Court | Texas Court of Criminal Appeals |
This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.
Petitioner was initially convicted of the offense of rape by force and threats, pursuant to Art. 1183, V.A.P.C. (1925), on a plea of not guilty to a jury and was assessed a 12 year term of imprisonment on January 3, 1974. This conviction was affirmed on appeal in a per curiam opinion (Cause No. 49,554). Subsequently, petitioner was also convicted of the offense of sodomy, pursuant to Art. 524, V.A.P.C. (1925), in another jury trial, and this time was assessed a 10 year term of imprisonment on April 2, 1974. The trial court ordered that the two above mentioned sentences run cumulatively. Art. 42.08, V.A.C.C.P. An attempted appeal of this conviction resulted in a dismissal of the appeal (Cause No. 51,173).
Petitioner filed his application for writ of habeas corpus with the trial court contending that the second trial for the offense of sodomy should have been barred under the double jeopardy doctrine since both offenses arose out of the same operative set of events, at the same time, against the same complaining witness. It will be necessary to outline the facts concerning these transactions.
In reviewing the evidence submitted in both of petitioner's trials, a fair summary of the facts would indicate that on July 12, 1973, petitioner approached the complaining witness, L______ M______, when she was in a telephone booth talking to her boyfriend, and asked her if she had any jumper cables. Upon receiving a negative reply, he turned to his car, which he parked alongside of complainant's car, and remained in the vicinity, observing her. She continued her telephone conversation, informing her boyfriend of petitioner's request and stating that he seemed to be watching her. A few minutes later petitioner appeared at the telephone booth again with a gun in his hand. The complaining witness screamed, and petitioner hung up the phone receiver. She was forced into the front seat of her car and ordered to drive while petitioner got in the back seat and placed the gun to her head. After driving a few minutes, she was told to stop the car and get on the floorboard on the passenger side. Petitioner began driving the car, still holding the gun on her at all times.
A short while later, after making a stop at a parking lot, he indicated he was going to let her out, and he drove the vehicle into a grove of trees in a deserted area. He stopped the car and ordered the complainant out. There he forced her to undress and to commit oral sodomy. He thereafter raped the complainant at pistol point. After the rape had occurred, petitioner ordered the complaining witness to get dressed and get back into her car, and afterward petitioner drove the complaining witness back to the phone booth. He departed and left in his car, and she left in hers, returning to...
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