Ex Parte Scott

633 S.W.2d 823, 1982 Tex. Crim. App. LEXIS 949

Opinions

OPINION

CLINTON, Judge.

Petitioner applies for the issuance of a post conviction writ of habeas corpus, invoking the subject¹ matter jurisdiction of this Court provided by Article 11.07, V.A.C. C.P.

The record reflects that petitioner was convicted upon his plea of no contest to the offense of aggravated rape in Cause No. 275,527 entered on July 12,1978. The court assessed punishment at twenty years confinement in the Texas Department of Corrections. On the same day petitioner was also convicted upon his plea of no contest to the offense of robbery in Cause No. 272,396 and the court also assessed his punishment at twenty years imprisonment. There was no appeal perfected in either case.

Petitioner now asserts that the carving doctrine was violated by virtue of the fact that he was convicted of both aggravated rape and robbery when both offenses arose out of the same criminal transaction, were based on the same evidence, and were perpetuated on the same victim. Therefore petitioner contends that convictions for both robbery and aggravated rape are vio-lative of the double jeopardy clauses in both the state and federal constitutions. We agree.

The indictments recite offenses involving the same victim on the same day, and the sentences taken from the judgments each refer to the other and state that the sentences are to run concurrently with each other. As this Court said in Orosco v. State, 590 S.W.2d 121, 124 (Tex.Cr.App.1979), “double jeopardy attaches when multiple offenses had arisen from ‘an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim’.” See also Tatum v. State, 534 S.W.2d 678 (Tex.Cr.App.1976).

Moreover, petitioner’s failure to object does not constitute waiver of the carving doctrine or a double jeopardy violation. See Ex parte Pleasant, 577 S.W.2d 256 (Tex.Cr.App.1979), Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). Neither does his plea of no contest waive a carving doctrine violation. See Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974).

In addition, the record shows that this application for a writ of habeas corpus was returned to the trial court, asking that the habeas judge hold an evidentiary hearing. Pursuant to this order the habeas judge conducted the evidentiary hearing on July 11,1980 and found: (1) the aggravated rape and robbery arose out of the same criminal transaction; and (2) that the petitioner was sentenced first on the aggravated rape, Cause No. 275,527 and later that same day was sentenced on the robbery, Cause No. 272,396.

We accept the habeas judge’s findings of fact. They are sufficient to rebut the presumption contained in Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974), that the lowest cause number was entered first. We are therefore constrained to follow our holding in Ex parte Cantrell, 580 S.W.2d 369, 370 (Tex.Cr.App.1979).

We thus conclude that the conviction for robbery, Cause No. 272,396, is violative of the carving doctrine and accordingly petitioner is entitled to the relief here requested.

The writ of habeas corpus is granted, the conviction in Cause No. 272,396 is vacated and set aside and the indictment in that cause is dismissed.

It is so ordered. A copy of this opinion will be forwarded to the Texas Department of Corrections.

DOUGLAS, ODOM, DALLY and W. C. DAVIS, JJ., dissent.

Before the court en banc.

1 . Punishment was assessed at 20 years in each case.