Rubino v. Lynaugh, 87-1444

Decision Date18 May 1988
Docket NumberNo. 87-1444,87-1444
Citation845 F.2d 1266
PartiesGeorge Anthony RUBINO, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

David W. Coody, Emmett Colvin, Bruner, McColl & McColloch, Dallas, Tex., for petitioner-appellant.

C. Rex Hall, Jr., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, KING, and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

George Anthony Rubino seeks a writ of habeas corpus on the grounds that his successive prosecutions and convictions for aggravated kidnapping and attempted murder, arising out of the same criminal transaction, violate the double jeopardy and due process clauses of the United States Constitution. The district court denied the writ. We affirm the district court's decision that the double jeopardy clause raises no bar to the second prosecution and conviction.

The Texas Court of Criminal Appeals, however, affirmed Rubino's attempted murder conviction in reliance on the abandonment of the Texas "carving doctrine," a judicially developed rule barring multiple prosecutions and convictions for offenses "carved" out of a single criminal transaction. If this doctrine, which was still in force at the time of Rubino's offenses, would have barred his second prosecution, the Texas court denied Rubino due process and undermined the constitutional prohibition on ex post facto laws by applying retroactively the elimination of the doctrine to affirm his second conviction. Being uncertain how the doctrine would operate in this case, we certify to the Texas Court of Criminal Appeals the single, dispositive question whether the rule, treated as if still in effect, would have barred Rubino's second prosecution and conviction.

I.

In March, 1978, Rubino accosted Herbert Weitzman in the parking garage of Weitzman's office building in Dallas, Texas, and ordered him, at gunpoint, to get into his car. Rubino told Weitzman to drive toward South Grand Prairie where Rubino had dug a grave. During the forty-minute drive, Rubino held his pistol on his victim and repeatedly threatened him with violence. Weitzman took the first opportunity, as he slowed the car around a curve, to jump out and run. He heard gunshots and turned to find Rubino firing at him with a pistol, but he managed to escape.

Later in 1978, the State indicted Rubino for aggravated kidnapping. He pleaded not guilty and went to trial. A jury convicted him and sentenced him to fifteen years in prison. The State later indicted him for the attempted murder of Weitzman. Rubino filed a special plea in bar asserting that the attempted murder prosecution was barred under the double jeopardy clause of the Texas Constitution because both that offense and the prior aggravated kidnapping charge were "carved" out of the same criminal transaction. The court denied the plea in bar, and Rubino pleaded nolo contendere to the attempted murder charge. The court sentenced him to ten years in prison to run consecutive to the fifteen-year sentence.

Rubino appealed the attempted murder conviction to the Texas Court of Criminal Appeals which affirmed in an unpublished opinion delivered June 9, 1982. The court rejected Rubino's carving-doctrine claim in reliance on Ex parte McWilliams, 1 its opinion of May 12, 1982, abandoning the doctrine. Rubino then filed a state habeas petition asserting a double jeopardy bar to the second conviction and challenging the State's retroactive application of the elimination of the carving doctrine. The Texas Court of Criminal Appeals denied habeas relief without written order.

Having exhausted his state remedies, Rubino filed a habeas petition in the United States District Court for the Northern District of Texas. Adopting the findings and conclusions of the magistrate to whom the case was originally referred, the district court found no double jeopardy or due process bar to the second prosecution and conviction and so denied relief.

II.

Rubino concedes that the double jeopardy test outlined in Blockburger v United States 2 does not bar his second conviction because the Texas statutes define aggravated kidnapping and attempted murder as distinct offenses, each requiring proof of elements that the other does not. 3 He invokes, instead, the "same evidence" test of Brown v. Ohio 4 and Illinois v. Vitale 5: "Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." 6

The Brown Court cited two cases holding that prior prosecutions barred subsequent ones although the offenses charged were not "the same" under the Blockburger test. The first, involving the collateral estoppel of a subsequent prosecution because of a prior acquittal, 7 helps Rubino little as he has no prior acquittal. In the second, Ex parte Nielsen, 8 the defendant stood convicted of cohabiting with two wives over a two and one-half year period. The Court held that this conviction barred a subsequent prosecution for adultery with one of the two women on the day following the end of that period because "the adultery charged in the second indictment was an incident and part of the unlawful cohabitation," the latter being a single, continuous offense lasting until the day of the indictment. 9 In response to the State's argument that the charges of adultery and cohabitation required different elements of proof, the Court stressed that Utah's anti-cohabitation statute "was aimed against polygamy or the having of two or more wives; and it is construed by this court as requiring, in order to obtain a conviction under it, that the parties should live together as husbands and wives." 10 The Court found further that sexual intercourse was part of "liv[ing] together as husbands and wives." 11 Thus the cohabitation conviction necessarily rested on the same proof the State subsequently offered in the adultery prosecution, namely that Nielsen had sexual intercourse with a woman outside of a legal marriage. Having once convicted him of this conduct on a cohabitation charge, the State could not reprosecute him for the same conduct on an adultery charge.

The rule to be derived from Nielsen is clarified in Harris v. Oklahoma 12 and Illinois v. Vitale. 13 In Harris, the Court held that a defendant who had been convicted of felony-murder could not subsequently be prosecuted for the felony underlying the prior conviction: "When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one." 14 Under Blockburger, robbery was not, strictly speaking, a lesser-included offense of felony-murder as the felony-murder statute allowed proof of the crime by a number of felonies other than armed robbery. Nevertheless, Harris committed no predicate felony other than robbery, and the State conceded that "in the Murder case, it was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved." 15 Because proof of the robbery was indispensable to the murder conviction, the Court held subsequent prosecution for robbery barred. 16

Similarly, in Vitale, the Court held that the defendant "would have a substantial claim of double jeopardy" if the State sought to prove manslaughter charges against him by offering evidence of his failure to slow his automobile to avoid an accident, an offense for which he had already been convicted. 17 That a manslaughter conviction might hypothetically rest on proof of other reckless acts would not justify reprosecution if in fact the State had to rely on evidence undergirding the first conviction in order to obtain the second.

Under the test established in these cases, Rubino's second prosecution did not put him twice in jeopardy. Although in trying Rubino for aggravated kidnapping the State offered evidence that he shot at Weitzman, proof of the attempted murder was not necessary to obtain the kidnapping conviction because the State offered sufficient evidence independent of the shooting to support a conviction for aggravated kidnapping.

The elements of aggravated kidnapping under Texas law include intentionally or knowingly "restrain[ing] a person with intent to prevent his liberation by ... using or threatening to use deadly force" "with the intent to ... inflict bodily injury on him." 18 In addition to testimony about the shooting, the State offered evidence that Rubino held a gun on his victim throughout the car ride, said he had a vendetta against Weitzman and his associates for allegedly cheating him in business, boasted of his ability as a marksman and of the number of people he had killed while in the military, announced that he had filed the bullets in his gun in a special way so that, if he shot Weitzman, the injury would be severe, and told his victim that they were going to a grave Rubino had prepared. This was enough to establish the use of deadly force, the threat to use deadly force, and the intent to inflict bodily harm. In contrast to the situation in Harris, the conviction for the "greater crime," aggravated kidnapping, could have been had without the conviction for the "lesser crime," attempted murder. The double jeopardy clause does not, therefore, bar prosecution on the second charge after conviction on the first. 19

III.

In affirming Rubino's conviction for attempted murder, the Texas Court of Criminal Appeals relied on its abandonment of the Texas "carving doctrine" in Ex parte McWilliams. 20

There is no definitive statement of the carving doctrine; it is a nebulous rule applied only in this...

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