Rubino v. Lynaugh

¶1dissenting and concurring.

¶2This cause appears to be the very first case in which this Court is called upon to answer a certified question from the United States Fifth Circuit Court of Appeals in its cause of Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir.1988), which is being done pursuant to the provisions of Rule 214(a), Texas Rules of Appellate Procedure.1See and compare Greene v. Massey, 595 F.2d 221 (5th Cir.1979), and Greene v. Massey, 384 So.2d 24 (Fla.1980). Also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Therefore, I am reluctant to file a dissenting opinion to such an historical occasion. Nevertheless, I believe that my duty as a judge of this Court requires me to do just that.

¶3I stress that this cause is not before this Court either on direct appeal, through a petition for discretionary review proceeding, on remand from the United States *806Supreme Court, or on remand from the Fifth Circuit Court of Appeals, but is before this Court strictly pursuant to Rule 214(a).

¶4I find that when this Court is asked by either the United States Supreme Court or a United States Court of Appeals to answer a certified question pursuant to Rule 214(a), before doing so, It should exercise its jurisdiction and authority with extreme care in the premises, and not write an opinion just for the sake of answering a proffered question from another tribunal, or just write an opinion that amounts to doing the research on an issue for the other tribunal. My biggest concern in this Court answering submitted certified questions probably lies in tbe fact that to answer such a question actually amounts to writing an advisory opinion on a case that is not then pending before this Court for it to dispose of.

¶5Rule 214(a), expressly provides that the decision whether or not to answer any certified question is strictly discretionary with this Court. Por reasons that I will give, and ⅛ all due respect to the members of the Fifth Circuit, I do not believe' that this ⅛ the proper case in which this Court should answer the submitted certified question. Therefore, my vote is to put this Court’s “improvidently granted'"'" stamp to its earlier decision to answer the submitted certified question. The majority votes otherwise. Therefore, I am compelled to file this dissenting opinion.2

¶6I file this dissenting opinion because I cannot conclude that answering the submitted certified question "may be determinative of the cause now pending15'' ⅛ the Fifth Circuit, which is a prerequisite before the provisions of Rule 214(a) should be invoked.. Another prerequisite of the rule is that “there is no controlling precedent in tbe decisions of the Court of Criminal Appeals,In this instance. I fed that there is more than ample “controlling precedent,” all favorable to petitioner, that the Fifth Circuit could rely upon, if it chose to do so.

¶7Because I agree that the answer to the certified question that has been assigned by the Fifth Circuit Court of Appeals to this Court to answer should be answered in the affirmative, I agree with the affirmative answer that the majority opinion gives to the question. Therefore, I concur.

¶8In 2 Texas Criminal Practice, in § 51.02, at page 51-11, the following is stated:

The doctrine of carving is a judically created principle which prohibited successive prosecutions for offenses, even though separate and distinct, which arise from the same transaction and require the same basic evidence for conviction ... The carving doctrine also prohibited the prosecution from carving more than one conviction out of a continuous as-saultive act committed upon the same person during the same transaction. Thus, if a defendant commits several offenses which are separate and distinct in contemplation of law, the carving doctrine would prohibit more than a single conviction given circumstances that they were ail committed in a continuous assault and proved by the same acts and evidence ... Tbe carving doctrine is [however] no longer recognized in Texas....

¶9When George Anthony Rubino, henceforth petitioner, committed the offenses of aggravated kidnapping and attempted murder. as well as when Ms direct appeal from his attempted murder conviction was submitted to this Court the doctrine of carving was then live, well, and breathing like a mighty con of the jungle. However, in Ex parte McWilliams, 684 S.W.2d 815 (Tex.Cr.App.1982) (on rehearing), tbe mighty lion was put to death and cremated by a majority of this Court, because “it increased crime/"

¶10*807Petitioner has long asserted that his conviction for attempted murder was barred under this Court’s doctrine of carving, as well as the double jeopardy clauses of the Federal and State Constitutions, because he had previously been convicted of the offense of aggravated kidnapping, which arose out of the same continuous assaultive transaction. Both offenses occurred on the same day in Dallas. The same individual was the victim in both cases. Petitioner’s convictions were based on the same evidence, i.e., the evidence that went to one went to the other. The facts of the two offenses, which arose out of the same continuous assaultive transaction, are rather simple.

¶11Petitioner and his victim had been adversaries in litigation over a contract. Petitioner abducted his victim at gunpoint in Dallas one day and forced his victim to drive them towards Grand Prairie, during which his victim jumped out of the moving vehicle and began running. Soon thereafter, petitioner simultaneously, but unsuccessfully missing his mark, his victim, fired two shots from his pistol at his victim.

¶12Petitioner was first tried and convicted by a jury for committing the offense of aggravated kidnapping his victim. The jury assessed his punishment at fifteen years’ confinement in the Department of Corrections. Thereafter, subject to his pleas of double jeopardy and the doctrine of carving, petitioner pled nolo contendere to the offense of attempted murder. The trial court overruled his pleas and found petitioner guilty, after which the trial court assessed his punishment at ten years’ confinement in the Department of Corrections. The second sentence is to be served consecutively to the first sentence.

¶13On direct appeal, this Court on June 9, 1982, in an unpublished opinion, relying principally upon this Court’s recent decision of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (On rehearing), which was handed down during the previous month on May 12, 1982, rejected petitioner’s contentions and affirmed the trial court’s judgment and sentence. See Rubino v. State, 634 S.W.2d 729 (Tex.Cr.App.1982).

¶14After this Court rejected petitioner’s contention on direct appeal, he filed an application for the writ of habeas corpus (postcon-viction), in which he made the same assertions that he raised on direct appeal. He additionally claimed that this Court erred by retroactively applying its decision of Ex parte McWilliams to his case. On September 25, 1985, this Court denied petitioner’s application without written order. See Ex parte Rubino, Tex.Cr.App. Writ No. 15,-231-01.

¶15Having exhausted his state remedies, petitioner then pursued his claim for relief in the federal court system. A United States District Court denied him relief. He then appealed to the Fifth Circuit Court of Appeals, where his cause is now pending, see Rubino v. Lynaugh, apparently subject to this Court answering the above certified question from that Court.

¶16It appears to me that what prompted the Fifth Circuit to ask this Court to answer the above certified question lies in the fact that that Court, after reading this Court’s decision of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (On rehearing), decided May 12, 1982, in which a majority of this Court voted to abandon this Court’s doctrine of carving, because “it encourages crime,” 3 perceived there was an absence of “controlling precedent” due to the criticism of the doctrine that is contained within the majority opinion of Ex parte McWilliams. The Fifth Circuit also observed that in Ex parte Clay, 675 S.W.2d 765 (Tex.Cr.App.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. *8081399, 84 L.Ed.2d 787 (1985), this Court ruled that “Ex parte McWilliams is to be given full retroactive application to all cases whether they arise on collateral review or direct appeal.” (768).

¶17I find that, regardless of the unjustified criticism of the doetrine of carving that is contained within the majority opinion on rehearing in Ex parte McWilliams, such criticism did not serve to undermine the precedential value of such prior decisions of this Court that invoked and favorably applied to defendants the doctrine of carving in a particular cause.

¶18The Fifth Circuit Court of Appeals appears to have already ruled in Rubino v. Lynaugh that retroactive elimination of the doctrine of carving to affirm Rubino’s attempted murder conviction violated both the due process of law and the ex post facto clauses of the Federal Constitution. This holding effectively overruled this Court’s decision of Ex parte Clay. The Fifth Circuit’s holding is, of course, conditioned upon the finding that the earring doetrine was in existence either when Rubi-no committed his offenses or when Ms cause was submitted to this Court. In this instance, in all due respect to the Fifth Circuit Court of Appeals, hasn’t that Court placed the cart before the horse, i.e., hasn’t it written on the “cart” and now wants this Court to write on the “horse”?

¶19There are a legion of cases from this Court, all of which predate the opinion on rehearing in Ex parte McWilliams, in which, under similar if not almost identical facts to those in this cause, this Court granted numerous defendants relief for the same reason that petitioner bases Ms claim for relief in this cause. It is unknown at this time just how many defendants also received relief under the doctrine of carving through per curiam unpublished opinions of this Court. However, it stands to reason that given the number of published opinions m which this Court granted defendants relief under the carving doctrine, it is obvious that many defendants received relief in unpublished opinions of this Court.

¶20It appears to me that if the Fifth Circuit had carefully read this Court’s 8-1 majority opinion on original submission in Ex parte McWilliams it could have easily concluded that there was no necessity to certify the above question to this Court to answer, for that opinion correctly set out the law regarding the doctrine of carving that existed prior to when the majority opmion on rehearing was filed in Ex parte McWilliams.

¶21On original submission in Ex parte McWilliams eight members of this Court, namely Judge Tom Davis who authored the opinion, Presiding Judge Onion, and Judges Roberts, Odom, Phillips, W.C. Davis, Clinton, and Dally, approved the opinion on original submission. Judge Douglas was the only judge to dissent. On rehearing, Presiding Judge Onion, and Judges Roberts and Clinton held firm and did not vote for the majority opmion. In the interim, Judges McCormick and Teague became members of the Court, replacing Judges Douglas and Phillips. Amazingly, Judge Tom Davis, who wrote the 8-1 majority opinion on original submission, which held that the carving doctrine was applicable to that cause, reversed his vote and voted with the majority opmion, thus causing the majority opmion to squeak by 5-4, with Judge Dally authoring the opinion, and with Judges Odom, Tom Davis, W.C. Davis, and McCormick voting for the majority opinion, and Presiding Judge Onion and Judges Roberts, Clinton, and Teague voting against the majority opinion. Had Judge Tom Davis held firm to what he stated in the original 8-1 opinion that he wrote for the Court, this Court would not have voted on rehearing to abandon the doetrine of carving. Neither Judge Tom Davis, who authored the original majority opinion, nor Judges Odom and W.C. Davis, who voted for the original majority opinion, wrote on rehearing to explain what might have caused them to change their votes in such a brief period of time.

¶22Published opinions of this Court, in which this Court had formerly invoked and applied the carring doctrine to a case, and granted a defendant relief from multiple convictions, actually include Ex parte McWilliams, on original submission. For other cases which so held, see Ex parte *809Scott, 633 S.W.2d 823 (Tex.Cr.App.1980) (On original submission), which cited Orosco v. State, 590 S.W.2d 121, 124 (Tex.Cr.App.1979), and Tatum v. State, 534 S.W.2d 678 (Tex.Cr.App.1976), as authority; Ex parte Rodriquez, 600 S.W.2d 835 (Tex.Cr.App.1980), which cited Ex parte Harris, 583 S.W.2d 419 (Tex.Cr.App.1979), and Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974), as authority; Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980), which also cited Oroscoand Calderon as authority; and Ex parte Mike, 632 S.W.2d 594 (Tex.Cr.App.1982) (On original submission), which also cited Ex parte Harris and Oroscoas authority; Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973); Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975); Ex parte Hilliard, 538 S.W.2d 135 (Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex parte Farris, 538 S.W.2d 134 (Tex.Cr.App.1976); Ex parte Thomas, 538 S.W.2d 622 (Tex.Cr.App.1976); Ex parte Adams, 541 S.W.2d 440 (Tex.Cr.App.1976); Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Olson, 560 S.W.2d 688 (Tex.Cr.App.1978); Ex parte Prince, 549 S.W.2d 753 (Tex.Cr.App.1977); Ex parte Rodriguez, 560 S.W.2d 94 (Tex.Cr.App.1978); Ex parte Barron, 568 S.W.2d 362 (Tex.Cr.App.1978); Hancock v. State, 495 S.W.2d 222 (Tex.Cr.App.1978); Harris v. State, 499 S.W.2d 139 (Tex.Cr.App.1973); and Thompson v. State, 495 S.W.2d 221 (Tex.Cr.App.1973). This vast array of authority makes it clear to me that there is ample controlling precedent for the Fifth Circuit to use if it chooses to do so in order to resolve the instant criminal law question without the necessity for it to have submitted to this Court the above certified question.

¶23I will acknowledge that cases by this Court may exist which might appear to have rejected the applicability of the carving doctrine to a particular case, even when justice cried out for such to occur. The State in this cause, of course, relies upon those cases. However, a close examination of those cases which were written after January 1, 1970, makes it clear that three of the opinions on which the State relies were not written by members of this Court, but were in fact written-by commissioners of this Court. Only one case on which the States relies, Douthit v. State, 482 S.W.2d 155 (Tex.Cr.App.1972), was actually written by a member of this Court, Judge Douglas, who was long a proponent for the abolition of the carving doctrine, and it passed by a meagre 8-2 vote, with Presiding Judge Onion and Judge Morrison dissenting. Judges Roberts and Odom voted for the majority opinion. At toar time this Court only consisted of five members. Given the fact that Judge Roberts was always a strong advocate of the carving doctrine, see, for example, the dissenting opinion that he filed in Ex parte McWilliams (on rehearing), I find that Judge Roberts! vote for the majority opinion in Douthitinsignificant, when it comes to Ms position on toe carving doctrine. Furthermore, the cases on which the State relies which should have, but did not correctly apply the doctrine of carving to the facts of the ease, can only be described as aberrations on the subject, and, for this reason, if no other, have no real precedential value.

¶24Therefore, I must strongly disagree with the Fifth Circuit Court of Appeals5 conclusion that “We therefore have no authoritative state ruling on whether the doctrine [of carving] would bar the [petitioner’s] second prosecution and conviction.” 4

¶25I find that the above eases of this Court, which have invoked and applied the doe-trine of carving favorably to a defendant, are more than sufficient authority to show that had this Court invoked and applied the doctrine of carving to petitioner’s case *810when it was before this Court on direct appeal, or even when it was before this Court in the postconviction stage of the process, this Court would have granted petitioner relief and ordered the attempted murder conviction set aside. The majority opinion correctly answers the certified question in the affirmative.

¶26For all of the above reasons, I concur and dissent.