George Anthony Rubino v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent

845 F.2d 1266, 1988 U.S. App. LEXIS 7561, 1988 WL 48042

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 1988
• Docket: 87-1444
• Status: Published

Opinions

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 Weitz-man’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 Weitz-man. 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 States² 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. Ohio4 and Illinois v. Vitale⁵: “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 es-toppel 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. Oklahoma¹² 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 “restrainpng] 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 jurisdiction. Initially, carving was applied when two offenses charged contained common material elements or when the two offenses required the same evidence to convict. Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943 (1896). This Court added the “continuous act or transaction” test in Paschal v. State, 49 Tex.Cr.R. 111, 90 S.W. 878 (1905). Since that time the “same evidence” and the “continuous assaultive transaction” tests have been randomly applied.²¹

Because the two carving-doctrine tests might yield different results, because the Texas courts have not made explicit the criteria for deciding which to apply, and because each test is somewhat unclear standing alone, it remains an open question whether the doctrine would have barred the second prosecution in this case. Nonetheless, the Texas Court of Criminal Appeals has called the abandonment of the doctrine “a clear break with the past,”²² and only that court may answer authoritatively the question whether the doctrine, before the “break,” would have barred Ru-bino’s reprosecution. We have decided, therefore, to certify this question to the Court of Criminal Appeals. On certification, that court considers only questions dispositive of the case.²³ We must, therefore, reach and resolve the constitutional issue.

In affirming Rubino’s second conviction on the basis of McWilliams, the Texas Court of Criminal Appeals denied him the right to claim the protection of a doctrine that was still in force at the time he committed his crimes and that would, under some interpretations, have barred his second prosecution. Rubino asserts that this denial so undermines the constitutional prohibition on ex post facto laws as to constitute a due process violation.

Article I, § 10, of the United States Constitution forbids the states to pass ex post facto laws. This prohibition applies directly only to state legislatures, but the Supreme Court has held that the due process clause protects criminal defendants against action by the judiciary that would contravene the ex post facto clause if done by the legislature.²⁴ The State concedes in its brief that due process analysis of judicial action is interchangeable with ex post facto analysis of analogous legislative action.

Relying on this court’s decision in Gabel v. McCotter;²⁵ however, the State contends, and the district court intimates, that Rubi-no’s petition presents only a question of state law not cognizable in a federal habeas petition. In Gabel, the State trial court enhanced the habeas petitioner’s sentence on the basis of a prior federal felony conviction punishable by imprisonment but not punishable as a crime under Texas law. At the time of Gabel’s offenses, the Texas courts enhanced sentences only on the basis of federal felonies that were also crimes under Texas law. Gabel objected to the application of the new interpretation of the enhancement statute to him as a violation of ex post facto principles incorporated in the due process clause. This court correctly noted that the determination of what prior crimes should count for enhancement purposes under Texas law was solely for the State and not cognizable in federal habeas corpus.²⁶ From the premise that the change in Texas law was “purely a question of state evidentiary procedure,” the court reasoned that there was no due process violation in its ex post facto application.²⁷

The State and the district court in this case seem to interpret Gabel to mean that state law revisions cannot present federal ex post facto problems if the new laws are not otherwise subject to constitutional challenge. We agree that the question whether or not to abandon the carving doctrine was solely for the Texas Court of Criminal Appeals, and we express no opinion on the wisdom of its choice. On the other hand, the question whether the retroactive application of the elimination of the carving doctrine undermines ex post facto principles is peculiarly within the province of a federal habeas court charged with resolving federal constitutional challenges to the custody of state prisoners.²⁸

In a clause separate from the one addressing Congress, the United States Constitution provides, “No State shall ... pass any ... ex post facto Law.”²⁹ Moreover, the Supreme Court has consistently held the prohibition on ex post facto laws applicable to state law changes without regard to whether the changes are subject to constitutional scrutiny on other grounds.³⁰ Indeed, if Gabel stood for the proposition that the ex post facto application of otherwise unassailable changes in state law presented no federal due process problem, its effect would be erased because only last term, in a decision subsequent to Gabel, the Supreme Court reaffirmed that a State violates the United States Constitution by the retroactive enforcement of a state law, not challenged on its face or in its prospective applications, to the detriment of a criminal defendant.³¹ We must follow the more recent Supreme Court pronouncement. Without overstepping the boundaries of our authority under the habeas corpus statute, therefore, we turn to the question whether the change in Texas law, applied in a manner that deprived Rubino of the protection of a doctrine still in effect at the time of his crimes, constituted a violation of the due process clause of the United States Constitution.

In a unanimous 1987 decision vacating a sentence imposed under Florida’s revised sentencing guidelines upon a defendant whose crimes had occurred before the effective date of the new guidelines, the Supreme Court reiterated the test for violations of the ex post facto clause first articulated in Calder v. Bull.32 The following kinds of laws transgress the clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.³³

The purposes behind the prohibition on ex post facto laws are twofold: to restrain legislatures and courts from arbitrary and vindictive action and to prevent prosecution and punishment without fair warning.³⁴

In Bouie v. City of Columbia,35 the Supreme Court held that a judicial enlargement of the coverage of a precisely worded South Carolina criminal trespass statute could not be applied retroactively to punish blacks who had “sat in” at a drugstore lunch counter. Justice Brennan reasoned that the defendants had no “fair warning” that the statute, which on its face punished only “[ejntry ... after notice prohibiting same,”³⁶ would be construed to punish refusal to depart upon request after an invited, or at least not prohibited, entry. Proceeding from Bouie’s logic, the Court held in Marks v. United States³⁷ that the standard for identifying hard-core pornography articulated in Miller v. California, namely that the materials lacked “serious literary, artistic, political, or scientific value,”³⁸ could not be applied retroactively to punish persons who operated at a time when the governing standard for identifying pornography, under Memoirs v. Massachusetts, was whether the materials were “utterly without redeeming social value.”³⁹ Justice Powell reasoned that to apply Miller retroactively would “punish conduct innocent under Memoirs” and so violate due process/ea; post facto norms.⁴⁰

The State correctly points out in its brief that both of these cases rest squarely on a “fair warning” rationale: the Bouie and Marks defendants had no notice at the time of their conduct that it was criminal; indeed, their conduct may have been innocent when done. Not so with Rubino. He had fair warning, at the time of his offenses, that aggravated kidnapping and attempted murder were crimes in Texas.

What the State overlooks is that the ban on ex post facto legislative or judicial action does more than ensure fair warning; it also curbs vindictiveness.⁴¹ Despite express inquiry by the court, the State’s attorney has provided no explanation for Rubino's reprosecution other than the State’s dissatisfaction with his first sentence and its desire to obtain a consecutive sentence. Courts and prosecutors may justifiably seek to punish criminals to the full extent of the law, but when they take advantage of changes in the law that put the defendant in a worse position than he was at the time of his crime, we may suspect, and disallow, vindictiveness.

Moreover, ex post facto I due process principles guarantee defendants “fair warning,” not only of what is criminal, but also of what punishment attaches to a crime or crimes. Thus, although the defendant in Miller v. Florida⁴² had adequate notice that the acts for which he was convicted — sexual battery, burglary with assault, and petit theft — were criminal, the Supreme Court vacated his sentence on the ground that it had been imposed under new state guidelines that made his punishment more onerous than was permissible at the time of his offenses.⁴³

Kring v. Missouri⁴⁴ shows the reach of the constitutional ban on ex post facto increases in punishment. The Supreme Court held in Kring that the State of Missouri could not apply retroactively the abolition of a State constitutional provision that protected a defendant charged with first degree murder but convicted of second degree murder against subsequent retrial and conviction for first degree murder. The logic of the provision had been that a conviction for second degree murder constituted an acquittal of first degree murder. After Kring’s crime, however, Missouri changed its constitution to allow retrials on the maximum charges, and the State applied the new law to convict Kring of first degree murder and to sentence him to death on retrial after reversal of his second degree murder conviction. The Supreme Court overturned the first degree murder conviction and sentence on two grounds: the new State constitutional provision changed the rules of evidence such that “what was conclusive evidence of innocence of the higher grade of murder” at the time of Kring’s crime was no longer so; moreover, the new provision changed the punishment applicable to defendants like Kring, subjecting them to death sentences on retrial whereas before they were subject only to imprisonment for the lower grade of murder.⁴⁵

The State seeks to distinguish Kring on the ground that Kring’s assertion of the Missouri law in effect at the time of his crime would have made him legally innocent of the higher crime, whereas Rubino’s assertion of the carving doctrine would never have made him innocent, factually or legally.⁴⁶ While this distinction is sound, it misses the second point of Kring, namely that a State may not increase the punishment applicable to a crime after the crime is committed. The State argues that the abolition of the carving doctrine did not increase the punishment for any crime because the statutory sentencing ranges applicable to aggravated kidnapping and attempted murder remained the same before and after the McWilliams decision. The Missouri constitutional provision at issue in Kring, however, did not lengthen the sentence applicable to any crime, but rather changed the crime for which Kring could be charged on retrial and thereby subjected him to greater punishment. McWilliams authorized multiple convictions and sentences in some cases in which only one conviction and sentence would have been possible before. Rubino asserts that his is such a case. To subject Rubino to multiple rather than single convictions and sentences is to increase his punishment just as surely as Kring's was increased.

The State cites Hopt v. Utah⁴⁷ and Dobbert v. Florida⁴⁸ for the proposition that changes in the law affecting procedural rather than substantive matters do not violate ex post facto principles. Thus, in Hopt the Supreme Court upheld the defendant’s murder conviction and death sentence even though based on the testimony of a convicted felon who, at the time of Hopt’s crime, would have been an incompetent witness under the law of Utah. The Court found Utah’s enlargement of the class of people competent to testify merely a procedural change because “The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.”⁴⁹ Similarly, in Dobbert, the Supreme Court held “merely procedural” a change in the law of Florida that removed the death sentencing function from the jury and vested it in the trial judge who sentenced with the advice of the jury. A defendant sentenced under the latter procedure had no right to resentenc-ing by a jury alone although the law at the time of his murders called for a jury alone.

The abolition of the carving doctrine, by contrast, is not merely a procedural change. In Miller v. Florida, Justice O’Connor wrote, “a change in the law that alters a substantial right can be ex post facto 'even if the statute takes a seemingly procedural form.’ ”⁵⁰ We do not see how the abolition of the carving doctrine takes a “procedural form.” McWilliams authorizes distinct, additional prosecutions and convictions rather than simply changing the course to a result. Moreover, the demise of the doctrine affects a substantial right, the right to be free of multiple prosecutions and punishments for offenses arising out of one criminal transaction. If the carving doctrine would have barred Rubi-no’s second prosecution and conviction, the State deprived him of due process in affirming his conviction in reliance on the abandonment of a protective rule in force at the time of his offenses.

As the State itself contends alternatively, a Texas court should decide whether the carving doctrine would indeed have barred reprosecution in this case. The Texas trial court in which Rubino challenged the attempted murder prosecution denied his plea in bar on the ground that “approximately thirty seconds” elapsed between the aggravated kidnapping and the attempted murder: “the Court finds thats [sic] one offense and the elements in the evidence going to show the elements thereof were completed prior to the commission of the offense [of attempted murder].”⁵¹ Relying only on the retroactive application of McWilliams, the Texas Court of Criminal Appeals declined to review this interpretation of the carving doctrine as permitting a thirty-second break between Weitzman’s flight and Rubino’s shooting to establish two criminal transactions. We therefore have no authoritative state ruling on whether the doctrine would bar the second prosecution and conviction.

Because the carving doctrine is peculiarly a creature of state law, and a creature that the Texas Court of Criminal Appeals has called “nebulous” and “erratic,” ⁵² comity dictates that we certify to the Texas court the question whether the doctrine, treated as if still in effect, would have barred Rubino’s attempted murder prosecution, conviction, and sentence. Texas Rule of Appellate Procedure 214 permits certification, if “it appears to the certifying court that there is no controlling precedent in the decisions of the Court of Criminal Appeals” and the question is “determinative of the cause then pending.”⁵³ Considering the Court of Criminal Appeals’ own characterization of the doctrine, we find no controlling precedent. The question we certify is determinative of this case because, if the doctrine invalidates Rubino’s reprosecution, we must vacate his second conviction and sentence; if the doctrine does not bar his reprosecution, his second conviction and sentence stand, and he will have received the relief to which he is entitled in having his case adjudicated under the rule in force at the time of his crimes.

The question to be certified to the Texas Court of Criminal Appeals might be phrased as follows: “Would the Texas carving doctrine, treated as if still in effect, have barred Rubino’s prosecution and conviction on the attempted murder charge?” We disclaim any intention or desire that the Texas Court of Criminal Appeals confine its reply to the precise form or scope of the question certified.

Counsel for the parties shall have fifteen days to confer and to submit to this court a proposed agreed statement of the case and phrasing of the question to be certified. If the parties cannot agree on either the statement of the case or the question for certification, the petitioner will prepare a proposed statement and question within fifteen days, and the State will file its objections and counter-proposals within seven days thereafter.⁵⁴

For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief under the double jeopardy clause, REVERSE the denial of relief under the due process clause, and CERTIFY to the Texas Court of Criminal Appeals the question whether the carving doctrine would have barred Rubino’s attempted murder prosecution, conviction, and sentence.

1 . 634 S.W.2d 815, 822-24 (Tex.Crim.App.1982) (en banc).

2 . 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

3 . Compare Texas Penal Code Ann. § 20.04 with §§ 15.01 and 19.02 (Vernon 1974).

4 . 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 2226 n. 6, 53 L.Ed.2d 187 (1977).

5 . 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

6 . Brown, 432 U.S. at 166 n. 6, 97 S.Ct. at 2226 n. 6.

7 . Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

8 . 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).

9 . Id. at 185, 9 S.Ct. at 675.

10 . Id. at 189, 9 S.Ct. at 676.

11 . Id. at 186, 9 S.Ct. at 675.

12 . 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

¹³

14 . Harris, 433 U.S. at 682, 97 S.Ct. at 2913.

15 . Id.

16 . Accord, Davis v. Herring, 800 F.2d 513, 516-20 (5th Cir.1986).

17 . Vitale, 447 U.S. at 419-21, 100 S.Ct. at 2267.

18 . Texas Penal Code Ann. §§ 20.01, 20.04 (Vernon 1974).

19 . Cf. Sekou v. Blackburn, 796 F.2d 108 (5th Cir.1986).

20 . 634 S.W.2d at 822-24.

21 . Id. at 823.

22 . Ex parte Clay, 675 S.W.2d 765, 766 (Tex. Crim.App.1984) (en banc).

23 . Tex.R.App.P. 214.

24 . Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Q. 1697, 1702, 12 L.Ed.2d 894 (1964).

25 . 803 F.2d 814 (5th Cir.1986), reh'g denied, 806 F.2d 1257 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3215, 96 L.Ed.2d 701 (1987).

26 . Id. at 816 (citing Rubio v. Estelle, 689 F.2d 533, 536 (5th Cir.1982); Kemph v. Estelle, 621 F.2d 162, 163 (5th Cir.1980)).

²⁷

28 . See 28 U.S.C. § 2254 (1982).

29 . Compare U.S. Const. art. I, § 10, cl. 1 (emphasis added) with art. I, § 9, cl. 3.

30 . See, e.g., Kring v. Missouri, 107 U.S. (17 Otto) 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Bouie, 378 U.S. 347, 84 S.Ct. 1697; Miller v. Florida, — U.S -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

31 . Miller, — U.S.-, 107 S.Ct. 2446.

32 . 3 Dall. 386, 1 L.Ed. 648 (1798).

33 . Miller, — U.S. at -, 107 S.Ct. at 2450 (quoting Calder, 3 Dall, at 390 (some emphasis omitted and some added)).

34 . Id. at-, 107 S.Ct. at 2451.

35 . 378 U.S. 347, 84 S.Ct. 1697.

36 . Id. at 349 n. 1, 84 S.Ct. at 1700 n. 1.

37 . 430 U.S. 188, 97 S.Ct. 990.

38 . Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2715, 37 L.Ed.2d 419 (1973).

39 . Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966) (plurality opinion).

40 . Marks, 430 U.S. at 191, 97 S.Ct. at 992.

41 . Miller, — U.S. at -, 107 S.Ct. at 2451.

42 . Id., — U.S.-, 107 S.Ct. 2446.

43 . See also Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

44 . 107 U.S. (17 Otto) 221, 2 S.Ct. 443.

45 . Id. at 228, 2 S.Ct. at 449.

46 . See Clay, 675 S.W.2d at 767.

47 . 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884).

48 . 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

49 . Hopt, 110 U.S. at 589-90, 4 S.Ct. at 210.

50 . Miller, — U.S. at -, 107 S.Ct. at 2453 (quoting Weaver, 450 U.S. at 29 n. 12, 101 S.Ct. at 964 n. 12).

51 . Texas v. Rubino, No. F-78-8476-IL (Tex. Crim.Dist.Ct., Dallas Cty., Oct. term, 1978).

52 . McWilliams, 634 S.W.2d at 823-24.

53 . The Rule provides, in relevant part:

The Court of Criminal Appeals may answer questions of state criminal law certified to it by the Supreme Court of the United States or a United States Court of Appeals when requested by the certifying court, if there are involved in any proceedings before the certifying court questions of criminal law of this state which may be determinative of the cause then pending and as to which it appears to the certifying court that there is no controlling precedent in the decisions of the Court of Criminal Appeals. The Court of Criminal Appeals may, in its discretion, decline to answer the questions certified to it.

54 . See Petroleum Helicopters, Inc. v. Avco Corp., 804 F.2d 1367, 1373 (5th Cir.1986).