Ex parte Siller, 69353

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation686 S.W.2d 617
Docket NumberNo. 69353,69353
PartiesEx parte Antonio SILLER.
Decision Date27 February 1985

Page 617

686 S.W.2d 617
Ex parte Antonio SILLER.
No. 69353.
Court of Criminal Appeals of Texas,
En Banc.
Feb. 27, 1985.
Rehearing Denied March 27, 1985.

Nancy B. DeLong, Huntsville, for appellant.

Sam D. Millsap, Jr., Dist. Atty. and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Page 618



This is an application for habeas corpus seeking relief from consequences of a conviction pursuant to Article 11.07, V.A.C.C.P. Basically applicant contends that out of the same "criminal episode" or transaction he has been twice convicted in one trial on a single indictment, whereas the law allows only one conviction and punishment in the premises. 1 We agree and grant relief.

In Cause No. 82-CR 2231 in the 289th Judicial District Court, Bexar County, the indictment contains two counts: the first alleges that on the 25th day of April, 1982 appellant had sexual intercourse with a named female younger than 17 who was not his wife and was younger than 14 years of age; the second avers that on the same day appellant did engage in sexual contact with the same female child by touching her vagina with intent to arouse and gratify his own sexual desire. On his plea of not guilty the case was tried to a jury that returned a verdict of guilty on each count and then assessed punishment at confinement in the Texas Department of Corrections for 30 years and 10 years, respectively. In a single judgment the trial court adjudicated guilt of each offense and imposed separate sentences to run concurrently. On appeal the Fort Worth Court of Appeals affirmed in an unpublished opinion.

Applicant swears both offenses arose out of the same "criminal episode;" the local prosecuting attorney impliedly acknowledges they occurred in one transaction; the judge of the convicting court specifically found that "both offenses arose out of the same transaction." That is the premise on which we shall proceed.

The propriety of charging two or more offenses from a single transaction aside for the moment, it is settled law in this State that regardless of allegations in a charging instrument the consequence of a general verdict of guilt, as all predecessors to Article 37.07, V.A.C.C.P., mandated, is but one conviction and one punishment. Drake v. State, supra. Thus, applicant is entitled to appropriate relief unless the law has been changed by some authoritative judicial pronouncement or valid legislative enactment.

The State concedes that based on "the current state of the law it appears that the procedure utilized by the trial court was improper in that it allowed for more than one conviction arising out of a single indictment." It further concedes that rule of law "remains intact" despite abolition of the "carving doctrine" in Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). The State disassociates itself from what it concedes is still the law; it urges upon this Court two bases for finding that the prohibition against multiple convictions on a multiple count indictment is no longer "a valid rule of law."

First ground is that without the "carving doctrine" there is no foundation for the rule. The judge of the convicting court opined that "the procedural aspect of the carving doctrine disallowing multiple verdicts from a multiple count indictment was not addressed by the Court of Criminal Appeals and remains intact;" however, he perceives that the Blockburger test (see McWilliams, supra) permits the State to prosecute the two offenses alleged in this indictment and to obtain a verdict on each,

Page 619

and allows the trial court to enter judgment on each and to impose separate sentences.

In Drake we examined the carving doctrine in juxtaposition with the common law rules of joinder of offenses, and concluded one is independent of the other. Carving meant that the State could cut as much as it desired out of one transaction and allege what it had carved in a single indictment, whereas restricting the State to but one conviction from that single indictment was a feature of the common law that in Texas was soon incorporated into statutory law for criminal actions. 2

Secondly, the State urges and the judge of the convicting court agreed that intent of the Legislature in adding §§ 1(c) and 2(c) to Article 37.07, V.A.C.C.P., was to enable the State to obtain in one trial valid multiple convictions for offenses other than offenses against property alleged in a single indictment. We find such was not at all the intent nor is it the effect.

As revised in 1965, § 1 of Article 37.07, V.A.C.C.P., provided:

"1. The verdict in every criminal action must be general. When there are special pleas on which a jury is to find, it must say in its verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, it must find that the defendant is either guilty or not guilty."

Section 2 set forth an "alternate procedure" authorizing a bifurcated trial.

In the next session § 1 was amended by Acts 1967, 60th Leg., Ch. 659, § 22, p. 1739. Added were an "exception" and a clause: "and, except as provided in Section 2, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty." 3 Section 2 remained the "alternate procedure," albeit modified somewhat in particulars not relevant to this examination. There was neither a subsection (b) or (c) to § 1 nor a (c) to § 2. They came as conforming amendments to implement the new penal code. See Acts 1973, 63rd Leg., Ch. 399, 971, § 2(A), reproduced in 4 V.T.C.A. Penal Code 365 ff.

Along with those amendments to Article 37.07 the Legislature introduced its own concept of multiple prosecution just for repeated commission of an offense against property only, pursuant to V.T.C.A. Penal Code, Chapter 3, and necessarily sought to render former Article 21.24, V.A.C.C.P., compatible with those new provisions. See Drake, supra, for development of legislative history of Article 21.24 and its ramifications and consequences, as we understand them.

Having thus rewritten provisions for consolidation and joinder of certain property offenses for trial, and since those multiple prosecutions might well bring about multiple punishments under § 3.03, the Legislature turned its attention to Article 37.07. The last sentence of subsection (a) of § 1 became subsection (b), and a new subsection (c) was added to coincide with changes made in Article 21.24; it reads:

"(c) If the charging instrument contains more than one count or if two or more offenses are consolidated for trial pursuant to Chapter 3 of the Penal

Page 620

Code, the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them."

Subsections (a) and (b) of § 2 remained substantially the same, but a new subsection (c) was added, viz:

"(c) Punishment shall be assessed on each count on which a finding of guilty has been returned." 4

Given a consistently developing...

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