Ex Parte Fitch

580 S.W.2d 372, 1979 Tex. Crim. App. LEXIS 1432

Opinions

OPINION

DALLY, Judge.

The petitioner seeks post-conviction relief under the provisions of Art. 1107, V.A.C. C.P. He asserts that his conviction for robbery should be set aside when the doctrine of carving is applied.

On April 12, 1973, the petitioner waived jury trials and entered pleas of guilty to the offenses of escape from jail, Art. 353b, V.A. P.C. (1925), and robbery, Art. 1408, V.A.P.C. (1925). The punishment of imprisonment for twenty-five years for robbery was cumulated with the punishment of imprisonment for five years for escaping from jail.

The petitioner and other prisoners in the Pecos County Jail, using a rifle, robbed the sheriff of over two hundred dollars, locked him in a cell, and escaped from the jail. The petitioner alleges that the escape and the robbery were one uninterrupted sequence of events and that since the sheriff was the custodian of the prisoners he was the victim of both the robbery and the escape. Therefore, petitioner argues, the doctrine of carving will not permit his con viction for both offenses. He relies on Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977), and Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976).

In Ex parte Birl, supra, the same assaultive act was a common ingredient of both the robbery and the murder. In Hawkins v. State, supra, we upheld convictions for both the possession of a prohibited weapon and a robbery in which that weapon was used because they were separate and distinct offenses.

We find petitioner’s reasoning faulty because the escape from custody is not a criminal offense against the sheriff. Although the prisoners assaulted the sheriff in their escape, that assault was not a necessary element of the offense of escaping from jail. We find that the offense of robbery and escape from jail are separate offenses and the convictions for both are not prohibited by the doctrine of carving. The relief sought is denied.