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633 S.W.2d 823

Ex Parte Scott

Court of Criminal Appeals of Texas · decided 1982-06-09

Cited by 5 later decisions — most recently July 2005

5 state decisions

Key passage — most relied on by later courts

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

quoted by 3 later decisions, including Steels v. State, Boutwell v. State

Relies on Blockburger v. United States · Brown v. Ohio · Whalen v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1982-06-09

View the full empirical analysis of this case →

¶1OPINION ON STATE’S MOTION FOR REHEARING

W. C. DAVIS, Judge.

¶2On original submission, petitioner was granted relief in this proceeding under Art. 11.07, V.A.C.C.P., on the grounds that his multiple convictions, upon pleas of no contest, for aggravated rape in Cause No. 275,-527 and robbery in Cause No. 272,396,1 offenses which arose out of a single continuous transaction and which involved a single victim, violated the “carving doctrine” created by this Court.

¶3This Court, in the recent case of Ex parte McWilliams, 632 S.W.2d 574 (1982), held that the carving doctrine has now been abandoned in Texas. We follow that opinion and for the reasons stated therein find no error in either of the applicant’s convictions.

¶4Additionally, we hold that there is no double jeopardy violation in applicant’s convictions for aggravated rape and robbery. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), provides a test to determine if an individual is put in double jeopardy:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

¶5See also: Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). As noted in Ex parte McWilliams, supra, the Blockburgertest is satisfied if each statutory offense requires the proof of a fact that the other does not. Since aggravated rape (V.T.C.A. Penal Code, Section 21.03) requires proof of facts different than those required for robbery (V.T.C.A. Penal Code, Sec. 29.02), we find there is no double jeopardy violation in the convictions for aggravated rape and robbery.

¶6The State’s motion for rehearing is granted; the relief sought is denied.

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