Ex parte McWilliams, 64508

• Citation: 634 S.W.2d 815
• Decision Date: 15 October 1980
• Docket Number: No. 64508,64508
• Parties: Ex parte Stephen A. McWILLIAMS.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 815

634 S.W.2d 815

Ex parte Stephen A. McWILLIAMS.

No. 64508.

Court of Criminal Appeals of Texas, En Banc.

Oct. 15, 1980.

On Rehearing May 12, 1982.

Second Rehearing Denied July 14, 1982.

Robert L. Ketchand, Houston, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

TOM G. DAVIS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P. On July 24, 1975, petitioner entered pleas of guilty to the offenses of aggravated robbery, aggravated rape and aggravated kidnapping. Punishment in each cause was assessed at thirty years. Petitioner now raises numerous contentions concerning the validity of each of these convictions.

Initially, he maintains that his indictment for aggravated rape is fundamentally defective for failure to allege a culpable mental state. The indictment alleges in pertinent part that petitioner did then and there:

"unlawfully, by force and threats, and without the consent of Mrs. J L, ravish and have sexual intercourse with Mrs. J L, a female not then and there the wife of the said Stephen McWilliams, and the said Stephen McWilliams did compel submission by Mrs. J L to said ravishment and sexual intercourse by threatening to inflict death and serious bodily injury to the said Mrs. J____ L."

In Ex Parte Smith, 571 S.W.2d 22, this Court held that in order to establish criminal responsibility for the offense of rape, the State must allege and prove that the defendant acted intentionally, knowingly, or recklessly. V.T.C.A. Penal Code, Sec. 6.02. When a culpable mental state is an element of an offense and the indictment fails to allege that element, the indictment is fundamentally defective and will not support a conviction. See, Zachery v. State, Tex.Cr.App., 552 S.W.2d 136.

We find that petitioner's indictment for aggravated rape fails to allege an offense and that the conviction based thereon is void. The relief sought as to the conviction in Cause No. 10,170 in the 23rd Judicial District Court of Fort Bend County is granted and the indictment is ordered dismissed.

Petitioner next contends that he was subject to double jeopardy and the carving doctrine was violated when he was convicted upon the same evidence for two offenses arising out of the same continuous assaultive transaction involving a single victim.

The record reflects that on March 21, 1975, petitioner robbed at gunpoint the clerk of a grocery store in Arcola. Immediately thereafter, petitioner forced the clerk to leave the store with him in an automobile.

In two recent cases, we have held 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. Orosco v. State, Tex.Cr.App., 590 S.W.2d 121; Ex Parte Curry, Tex.Cr.App., 590 S.W.2d 712. 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. Likewise, in Phillips v. State, Tex.Cr.App., 597 S.W.2d 929 it was held that convictions for both aggravated kidnapping and aggravated sexual abuse resulting from one continuous assaultive transaction against the same victim violated the carving doctrine. Lastly, in Tatum v. State, Tex.Cr.App., 534 S.W.2d 678, it was held that convictions for three offenses arising out of a single transaction against a single victim violated the double jeopardy clauses of both the State and Federal Constitutions, and required reversal of two of the three convictions.

We find that the evidence supports the trial court's finding that one of petitioner's convictions was obtained in violation of the carving doctrine. Since the judgment in each cause was entered on the same day, we will presume that the judgment in the lowest cause number was entered first. See, Ex Parte Calderon, Tex.Cr.App., 508 S.W.2d 360. The relief sought as to the conviction in Cause No. 10,171 in the 23rd Judicial District Court of Fort Bend County is granted. Petitioner's conviction for aggravated kidnapping is set aside.

The remainder of petitioner's contentions will be addressed only as they relate to his aggravated robbery conviction.

Petitioner next raises three contentions concerning his aggravated robbery indictment. He maintains that the indictment is defective because it fails to allege a culpable mental state and ownership. He further argues that the indictment is insufficient because it does not allege that the person robbed was the same person assaulted.

Petitioner's indictment for aggravated robbery alleges in pertinent part that he did then and there:

"unlawfully and intentionally take steal, exercise control over, and carry away from Mrs. J L, hereinafter called owner, corporeal personal property, to wit, money, with intent to deprive said owner of said property and without the effective consent of said owner, and said defendant, in the course of committing said theft and with intent to take, steal, obtain, and maintain control of said property, did then and there intentionally and knowingly threaten and place the said owner in fear of imminent bodily injury and death by then and there using and exhibiting a deadly weapon, to wit, a firearm."

The allegation that petitioner acted "intentionally" is sufficient to allege a culpable mental state under Sec. 6.02, supra. There is no requirement that a robbery indictment allege ownership. Ex Parte Lucas, Tex.Cr.App., 574 S.W.2d 162; Servance v. State, Tex.Cr.App., 537 S.W.2d 753. Lastly, the victim of the robbery and the victim of the underlying theft need not be the same person. See, Watson v. State, Tex.Cr.App., 532 S.W.2d 619.

We find that the indictment is sufficient to allege an offense under V.T.C.A. Penal Code, Sec. 29.03.

In five related contentions, petitioner challenges the sufficiency of the evidence to support his aggravated robbery conviction. This Court has repeatedly held that a habeas corpus proceeding may not be used to collaterally attack the sufficiency of the evidence to support a conviction. See, Ex Parte Dunn, Tex.Cr.App., 571 S.W.2d 928; Ex Parte Dantzler, Tex.Cr.App., 571 S.W.2d 536. These contentions are without merit. ¹

Petitioner next contends that his plea of guilty to aggravated robbery was involuntary because he was told that if he did not plead guilty, he would receive a life sentence. The record reflects that during the guilty plea proceeding, the trial court admonished petitioner pursuant to Art. 26.13, V.A.C.C.P. The fact that petitioner entered a plea of guilty in order to avoid a greater punishment does not entitle him to habeas corpus relief. See, Ex Parte Thomas, 474 S.W.2d 238. This contention is without merit.

Petitioner next complains of a one-on-one showup which was conducted shortly after his arrest. In Fierro v. State, Tex.Cr.App., 437 S.W.2d 833, it was held that a plea of guilty, if voluntarily and understandingly made, is conclusive as to the defendant's guilt and waives all non-jurisdictional defects. An error in a pretrial identification procedure does not constitute a jurisdictional defect. We find that petitioner's plea of guilty waived error, if any, in the showup conducted after his arrest.

Petitioner next contends that his plea of guilty was the result of ineffective assistance of counsel. Among other things, he maintains that his attorney coerced him into pleading guilty, refused to contact certain witnesses, and "offered no advice or legal representation."

In a post-conviction habeas corpus action, the petitioner has the burden of proof. Ex Parte Sanders, Tex.Cr.App., 588 S.W.2d 383. An allegation of ineffective counsel will be sustained only if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Harrison v. State, Tex.Cr.App., 552 S.W.2d 151.

The trial court held an evidentiary hearing in connection with petitioner's application. At that hearing, there was no evidence offered relative to the claim of ineffective assistance of counsel. In the absence of such evidence, petitioner has failed to discharge his burden of having the record affirmatively demonstrate the alleged ineffectiveness of counsel's representation. This contention is without merit.

Finally, petitioner attacks his aggravated robbery conviction on the basis that the trial court failed to conduct a hearing on his competency to stand trial. He maintains that there was sufficient evidence before the trial court in 1975 to raise a bona fide doubt as to his competence to stand trial and that a competency jury should have been impaneled.

In the instant case, the trial court was relieved of any responsibility to hold a pretrial hearing by virtue of petitioner's announcement of ready and entry of a guilty plea without any suggestion of incompetency. See, Morales v. State, Tex.Cr.App., 587 S.W.2d 418; Thomas v. State, Tex.Cr.App., 562 S.W.2d 240.

The record reflects that prior to accepting his pleas of guilty, petitioner informed the court that he had been confined in two mental institutions in the State of New York. From January until September of 1972, he was at the Mattewan State Hospital in Beacon, New York. With regard to this confinement, the record from the guilty plea reflects as follows:

"THE COURT: ...

"All right, and during the time that you were in there, did you know that you were in that place?

"THE DEFENDANT: Not at the beginning.

"THE COURT: What did you have, a lick on your head or a crack-up or nervous breakdown, or what happened?

"THE DEFENDANT: I don't remember anything."

Petitioner was then transferred to the Utica State Hospital in Utica, New York. In describing his treatment and departure from this institution, petitioner stated as follows:

"THE COURT: And what did they do by way of treatment or consultation?

"THE DEFENDANT: Gave me medication and saw a doctor one time....