OPINION ON CERTIFIED QUESTION FROM THE FIFTH CIRCUIT COURT OF APPEALS
PER CURIAM.
This cause is before us, along with Clay v. Lynaugh, 770 S.W.2d 800 (Tex.Cr.App., delivered this day), on certified question from the United States Court of Appeals for the Fifth Circuit, pursuant to Tex.R. App.Pro., Rule 214. The Fifth Circuit held that this Court’s retroactive application of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on rehearing), to deprive Rubino of the benefit of the so-called “carving doctrine,” denied him due process and “undermined the constitutional prohibition on ex post facto laws_” Rubino v. Lynaugh, 845 F.2d 1266, 1268 (CA5 1988). Nevertheless, “uncertain how the doctrine would operate in this case,” the Fifth Circuit certified to this Court “the single, dispositive question whether the rule, treated as if still in effect, would have barred Rubino’s second prosecution and conviction.” Id.
In accordance with Rule 214(c)(2), supra, the parties stipulated to the following facts:
“George Rubino was convicted of the aggravated kidnapping of Herbert Weitz-man on August 2, 1978. Following that conviction, he was prosecuted and convicted in this case for the attempted murder of the same Herbert Weitzman. The evidence adduced at both George Rubi-no’s trial, which was exactly the same for plea in bar purposes, showed that the complainant, Herbert Weitzman, was accosted by Rubino, in the parking garage of Weitzman’s office building. Rubino pulled a gun and told Weitzman to get into his car. He told Weitzman that if he cooperated he might not get hurt. They then drove toward south Grand Prairie, Texas, on Rubino’s instructions. Rubino told Weitzman he was taking him to a grave he had dug. As he was making a turn, Weitzman jumped out of the moving car and began running. After 30 seconds, Weitzman heard a gunshot, and when he looked over his shoulder, he saw Rubino fire at him.”
The precise question certified to this Court is: “Based upon the facts recited [above], would the Texas carving doctrine, treated as if still in effect, have barred Rubino’s prosecution and conviction for attempted murder?” 849 F.2d 906.
In McWilliams the Court identified at least two tests for applying the carving doctrine:
“Initially, carving was applied when the 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 as-saultive transaction’ tests have been randomly applied.”
634 S.W.2d at 823. See also: Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979) (Douglas, J., dissenting); Ex parte Fitch, 580 S.W.2d 372 (Tex.Cr.App.1979) (Clinton, J., dissenting). The State now invites this Court to apply the “same evidence” test, and to disown the “continuous assaultive transaction” test. This we decline to do. Rather than attempt to reform the doctrine to resolve perceived inconsistencies in application, this Court chose simply to “abandon” it altogether. Ex parte McWilliams, supra, (Roberts, J., dissenting). Under such circumstances it would hardly seem equitable to refine the doctrine at this late date, by eliminating the “continuous as-saultive transaction” test, to deny this petitioner relief. Instead we will measure the stipulated facts against each test in turn to determine whether the carving doctrine applies. Ex parte Fitch, supra, (Clinton, J., dissenting).
[804]*804We find petitioner’s prosecution and conviction would not be barred under the “common material element” or “same evidence” test. While it is true that assaultive conduct was alleged in both indictments, it was not imperative for the State to prove the same assaultive act to convict petitioner of both aggravated kidnapping and attempted murder. As noted by the Fifth Circuit, albeit in the course of its federal jeopardy analysis, 845 F.2d at 1270, evidence of events occurring before Weitz-man attempted to make his escape and was fired upon, including petitioner’s use of the gun and assertion that their destination was Weitzman’s already-dug grave, was ample to establish all of the elements necessary to prove aggravated kidnapping. Likewise, all elements of the attempted murder were established by events occurring at the time of the escape and shooting, without recourse to the earlier assaultive conduct. That proof of each offense would be admissible as res gestae at trial of the other does not mean they share “common material elemente” or necessarily rely on the "same evidence” for conviction.
More difficult is whether the stipulated facts above meet the “continuous assaultive transaction” test. The Court has identified a “common thread” running through the cases by which a “transaction" may be understood to be an “uninterrupted and continuous sequence of events or assaultive acts.” Hawkins v. State, 535 S.W.2d 359, 362 (Tex.Cr.App.1976). Indeed, in Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975), the Court found the “sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness[.j‘' and therefore held that the applicant’s second conviction for theft, which does not even have an assaultive component, was barred by his earlier comiction for robbery by assault. On the other hand, in applying the “continuous assaultive transaction” test the Court has frequently insisted upon proximity of time and place, E.g.. Douthit v. State, 4S2 S.W.2d 155 (Tex.Cr.App.1971) (Victim sexually assaulted a number of times, but over the course of several days, and in two different counties); Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974) (Victim robbed, beaten and abandoned, semi-conscious, in an isolated area, but a short time later the defendant returns and kills him). Each party now selects one among these cases to champion its cause. The State invokes Ex parte Caldwell, 537 S.W.2d 265 (Tex.Cr.App.1976), while petitioner submits Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977).
In Ex parte Caldwell, supra, the Court reasoned:
“The record reflects two separate assaults by [the defendant] upon the complainant. The first occurred when [the defendant], as a principal with his companion, assaulted her outside the building, forced her to enter the store, and by using firearms and threats, robbed her. When [the defendant] took her into another room of the building and raped her, this constituted an additional assault occurring in a different place at a different time, and was a separate transaction, and a separate offense.”
Id., at 266. The Court found no violation of carving under these facts. In Ex parte Birl, supra, the applicant and a companion robbed a grocery store clerk. Under a version of events assumed true, arguendo,
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OPINION ON CERTIFIED QUESTION FROM THE FIFTH CIRCUIT COURT OF APPEALS
PER CURIAM.
This cause is before us, along with Clay v. Lynaugh, 770 S.W.2d 800 (Tex.Cr.App., delivered this day), on certified question from the United States Court of Appeals for the Fifth Circuit, pursuant to Tex.R. App.Pro., Rule 214. The Fifth Circuit held that this Court’s retroactive application of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on rehearing), to deprive Rubino of the benefit of the so-called “carving doctrine,” denied him due process and “undermined the constitutional prohibition on ex post facto laws_” Rubino v. Lynaugh, 845 F.2d 1266, 1268 (CA5 1988). Nevertheless, “uncertain how the doctrine would operate in this case,” the Fifth Circuit certified to this Court “the single, dispositive question whether the rule, treated as if still in effect, would have barred Rubino’s second prosecution and conviction.” Id.
In accordance with Rule 214(c)(2), supra, the parties stipulated to the following facts:
“George Rubino was convicted of the aggravated kidnapping of Herbert Weitz-man on August 2, 1978. Following that conviction, he was prosecuted and convicted in this case for the attempted murder of the same Herbert Weitzman. The evidence adduced at both George Rubi-no’s trial, which was exactly the same for plea in bar purposes, showed that the complainant, Herbert Weitzman, was accosted by Rubino, in the parking garage of Weitzman’s office building. Rubino pulled a gun and told Weitzman to get into his car. He told Weitzman that if he cooperated he might not get hurt. They then drove toward south Grand Prairie, Texas, on Rubino’s instructions. Rubino told Weitzman he was taking him to a grave he had dug. As he was making a turn, Weitzman jumped out of the moving car and began running. After 30 seconds, Weitzman heard a gunshot, and when he looked over his shoulder, he saw Rubino fire at him.”
The precise question certified to this Court is: “Based upon the facts recited [above], would the Texas carving doctrine, treated as if still in effect, have barred Rubino’s prosecution and conviction for attempted murder?” 849 F.2d 906.
In McWilliams the Court identified at least two tests for applying the carving doctrine:
“Initially, carving was applied when the 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 as-saultive transaction’ tests have been randomly applied.”
634 S.W.2d at 823. See also: Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979) (Douglas, J., dissenting); Ex parte Fitch, 580 S.W.2d 372 (Tex.Cr.App.1979) (Clinton, J., dissenting). The State now invites this Court to apply the “same evidence” test, and to disown the “continuous assaultive transaction” test. This we decline to do. Rather than attempt to reform the doctrine to resolve perceived inconsistencies in application, this Court chose simply to “abandon” it altogether. Ex parte McWilliams, supra, (Roberts, J., dissenting). Under such circumstances it would hardly seem equitable to refine the doctrine at this late date, by eliminating the “continuous as-saultive transaction” test, to deny this petitioner relief. Instead we will measure the stipulated facts against each test in turn to determine whether the carving doctrine applies. Ex parte Fitch, supra, (Clinton, J., dissenting).
[804]*804We find petitioner’s prosecution and conviction would not be barred under the “common material element” or “same evidence” test. While it is true that assaultive conduct was alleged in both indictments, it was not imperative for the State to prove the same assaultive act to convict petitioner of both aggravated kidnapping and attempted murder. As noted by the Fifth Circuit, albeit in the course of its federal jeopardy analysis, 845 F.2d at 1270, evidence of events occurring before Weitz-man attempted to make his escape and was fired upon, including petitioner’s use of the gun and assertion that their destination was Weitzman’s already-dug grave, was ample to establish all of the elements necessary to prove aggravated kidnapping. Likewise, all elements of the attempted murder were established by events occurring at the time of the escape and shooting, without recourse to the earlier assaultive conduct. That proof of each offense would be admissible as res gestae at trial of the other does not mean they share “common material elemente” or necessarily rely on the "same evidence” for conviction.
More difficult is whether the stipulated facts above meet the “continuous assaultive transaction” test. The Court has identified a “common thread” running through the cases by which a “transaction" may be understood to be an “uninterrupted and continuous sequence of events or assaultive acts.” Hawkins v. State, 535 S.W.2d 359, 362 (Tex.Cr.App.1976). Indeed, in Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975), the Court found the “sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness[.j‘' and therefore held that the applicant’s second conviction for theft, which does not even have an assaultive component, was barred by his earlier comiction for robbery by assault. On the other hand, in applying the “continuous assaultive transaction” test the Court has frequently insisted upon proximity of time and place, E.g.. Douthit v. State, 4S2 S.W.2d 155 (Tex.Cr.App.1971) (Victim sexually assaulted a number of times, but over the course of several days, and in two different counties); Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974) (Victim robbed, beaten and abandoned, semi-conscious, in an isolated area, but a short time later the defendant returns and kills him). Each party now selects one among these cases to champion its cause. The State invokes Ex parte Caldwell, 537 S.W.2d 265 (Tex.Cr.App.1976), while petitioner submits Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977).
In Ex parte Caldwell, supra, the Court reasoned:
“The record reflects two separate assaults by [the defendant] upon the complainant. The first occurred when [the defendant], as a principal with his companion, assaulted her outside the building, forced her to enter the store, and by using firearms and threats, robbed her. When [the defendant] took her into another room of the building and raped her, this constituted an additional assault occurring in a different place at a different time, and was a separate transaction, and a separate offense.”
Id., at 266. The Court found no violation of carving under these facts. In Ex parte Birl, supra, the applicant and a companion robbed a grocery store clerk. Under a version of events assumed true, arguendo, by the Court, the applicant started out the door after his companion had secured the money from the cash register. Seeing the clerk move behind the counter, however, the applicant reached over and shot him several times, killing him. The Court rejected the State’s contention that the “few seconds while [the applicant] stood in the doorway” was “sufficient in itself to interrupt the assaultive action,” Therefore the applicant’s murder conviction was held to be barred by his prior conviction for robbery.
The question seems to boil down to whether tee facts stipulated in this ease are more like those of Caldwell than of Birl Rather than mediate this contest of analogues, however, we will proceed analytically from the language of the “common thread” we discerned in Hawkins v. State, supra. In this context we note that the concept of “transaction” that was at [805]*805work in Ex parte Caldwell, supra, is inconsistent with the notion that a “transaction” may be comprised of “an uninterrupted and continuous sequence of events or assaultive acts.” 535 S.W.2d at 362. Of course, Caldwell does not allude to the statement of the test in Hawkins. Applying Hawkins’ language to the facts of Caldwell, unless we are to accept that simply taking the victim into a back room (no doubt at gunpoint) constituted a sufficient break in time and place to “interrupt” the continuity of the “assaultive acts,” we must conclude Caldwell is an anomalous application of the test. We refuse to follow Caldwell here.
Instead we will inquire whether the attempted murder of Weitzman was part of an uninterrupted sequence of assaultive acts perpetrated against him by this petitioner. Essentially we must determine whether Weitzman’s escape, and the thirty odd seconds separating that event from the first shot fired at him as he fled, make for a sufficient break in time and place to interrupt the continuity of the assaultive conduct. These facts are distinguishable from those in Douthit v. State, or Lamberson v. State, both supra, which involved substantial periods of time between the assaultive acts. Here the threat of use of deadly force to perpetrate his abduction persisted up until the moment of Weitz-man’s fortuitous escape. Within a matter of seconds, presumably as soon as petitioner could bring the car safely to rest, that threat matured into actual use of deadly force. We perceive no interruption or deviation from petitioner’s fundamental purpose — to kill Weitzman. We hold that the differences of time and place between the original assaultive act in the parking garage and the attempt to kill on the roadside were not such as to break the continuity of petitioner’s overall assaultive conduct.
We therefore conclude petitioner Rubi-no’s prosecution for attempted murder would have been barred by the carving doctrine, and thus we answer the certified question in the affirmative.
Motion for rehearing will not be entertained.