Price v. State
| Decision Date | 02 February 1972 |
| Docket Number | Nos. 43140,43141,s. 43140 |
| Parties | John Baptist PRICE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Preston DeShazo, Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and E. A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
Appellant was charged by separate informations for the offenses of false imprisonment and aggravated assault arising out of the same transaction. He was tried for both offenses at the same time before the same jury. The jury returned a verdict of guilty, first, of false imprisonment and, secondly, of aggravated assault. In that same order the jury assessed punishment at one year in the county jail for false imprisonment and two years in the county jail plus a.$1000.00 fine for aggravated assault.
Although appellant does not challenge the sufficiency of the evidence, the following summary of facts will be beneficial to an understanding of the cases.
On May 23, 1969, at approximately 10:30 p.m., Carol Winter Shields was looking for a parking place at Fleetwood Square on Maple Avenue in Dallas. Appellant jumped in her car from the right side, put a knife to her throat and said: 'Do you want to live?' He directed her to drive a short distance during which time he placed the knife under her skirt and cut her hose. He then had Mrs. Shields park, kissed her twice, and told her to get in the back seat. Noises and voices were heard and appellant told her to start the car and leave. He placed his left arm around her neck and put the knife in his left hand. As the appellant was looking at and trying to remove a ring from her right hand, Mrs. Shields saw a stopped police car with its lights flashing. She turned toward the police car, screamed and stopped. The officers immediately got Mrs. Shields out of her car and arrested the appellant. She testified that all these events took place within a period of about ten or twelve minutes.
Appellant contends his punishment in each case constituted cruel and unusual punishment in violation of the United States and Texas Constitutions. The jury assessed the maximum punishment for both false imprisonment, Article 1174, Vernon's Ann.P.C., and for aggravated assault, Article 1148, Vernon's Ann.P.C. The punishment was within the range provided for in the statutes and was not excessive. See Burton v. State, Tex.Cr.App., 442 S.W.2d 354. Burgett v. State, 163 Tex.Cr.R. 139, 289 S.W.2d 582; Reeves v. State, 145 Tex.Cr.R. 208, 167 S.W.2d 176; Wagner v. State, 87 Tex.Cr.R. 47, 219 S.W. 471.
Appellant further contends that the conviction for aggravated assault cannot stand because of the prior conviction for false imprisonment arising out of the same transaction and the same evidence. The appellant contends that the Texas doctrine of carving applies.
The rule is found in 1 Branch's ...
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