Ex Parte Curry

Court of Criminal Appeals of Texas

Ex Parte Curry

590 S.W.2d 712, 1979 Tex. Crim. App. LEXIS 1799

CourtCourt of Criminal Appeals of Texas

DecidedDecember 19, 1979

Docket62651

StatusPublished

Cited by7 cases

This text of 590 S.W.2d 712 (Ex Parte Curry) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ex Parte Curry, 590 S.W.2d 712, 1979 Tex. Crim. App. LEXIS 1799 (Tex. 1979).

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OPINION

TOM G. DAVIS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner contends that he was subjected to double jeopardy 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 petitioner was convicted of aggravated rape and assessed punishment of 50 years on March 5, 1976 in Cause No. F76-174-NP in the 203rd Judicial District Court of Dallas County. On the same day in that court appellant was convicted of.aggravated robbery and as-, sessed punishment of 30 years in Cause No. F76-1518-P. Appeals were perfected in both causes to this Court and were affirmed in Curry v. State, 555 S.W.2d 126 (Tex.Cr.App.1977) in per curiam opinions numbered 53,768 and 53,769.

The trial court entered findings that the offenses for which petitioner was convicted were the product of one continuous assaultive transaction against a single victim. The trial court further found that the conviction in Cause No. F76-1518-P for aggravated robbery was subsequent to the conviction in Cause No. F76-174-NP for aggravated rape and that petitioner’s conviction in Cause No. F76-1518-P for aggravated robbery should be declared void.

The trial court’s findings, unchallenged by the State and petitioner, reflect that both convictions arose out of one continuous assaultive transaction against a single victim. See Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979); Ex parte Hillard, 538 S.W.2d 135 (Tex.Cr.App.1976). The second conviction for aggravated robbery in Cause No. F76-1518-P is violative of the double jeopardy provisions of the State and Federal Constitutions. Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976).

The relief sought is granted as to the conviction for aggravated robbery. The conviction therein is set aside.

DALLY, J., dissents. ROBERTS, J., not participating.

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OPINION

TOM G. DAVIS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner contends that he was subjected to double jeopardy 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 petitioner was convicted of aggravated rape and assessed punishment of 50 years on March 5, 1976 in Cause No. F76-174-NP in the 203rd Judicial District Court of Dallas County. On the same day in that court appellant was convicted of.aggravated robbery and as-, sessed punishment of 30 years in Cause No. F76-1518-P. Appeals were perfected in both causes to this Court and were affirmed in Curry v. State, 555 S.W.2d 126 (Tex.Cr.App.1977) in per curiam opinions numbered 53,768 and 53,769.

The trial court entered findings that the offenses for which petitioner was convicted were the product of one continuous assaultive transaction against a single victim. The trial court further found that the conviction in Cause No. F76-1518-P for aggravated robbery was subsequent to the conviction in Cause No. F76-174-NP for aggravated rape and that petitioner’s conviction in Cause No. F76-1518-P for aggravated robbery should be declared void.

The trial court’s findings, unchallenged by the State and petitioner, reflect that both convictions arose out of one continuous assaultive transaction against a single victim. See Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979); Ex parte Hillard, 538 S.W.2d 135 (Tex.Cr.App.1976). The second conviction for aggravated robbery in Cause No. F76-1518-P is violative of the double jeopardy provisions of the State and Federal Constitutions. Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976).

The relief sought is granted as to the conviction for aggravated robbery. The conviction therein is set aside.

DALLY, J., dissents. ROBERTS, J., not participating.

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590 S.W.2d 712, 1979 Tex. Crim. App. LEXIS 1799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-curry-texcrimapp-1979.

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