concurring:
I concur in the panel’s disposition of Ru-bino’s double jeopardy claim. However, although I also concur in the result reached by the majority on the ex post facto issue, the case presents issues which I believe the majority does not address. It is to these issues, which I find controlling, that this concurrence is directed.
My concern with finding an ex post facto violation in this case arises out of the Texas Court of Criminal Appeals’ own characterization of the viability of the carving doctrine as a judicial doctrine in that jurisdiction. In Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.) (en banc), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982), the decision in which the Texas Court of Criminal Appeals abandoned the carving doctrine, that court asserted “there is no definitive statement of *1276the carving doctrine” and further described the doctrine as “a nebulous rule.” Id. at 823. The Texas court then reviewed a series of its own apparently unreconcilable decisions under the doctrine to show the doctrine’s fickleness. Id.; see also Orosco v. State, 590 S.W.2d 121, 124-28 (Tex.Crim. App.1979) (dissent sets forth myriad examples of the same type of apparently unre-concilable decisions). The court concluded that in at least one prior case in which it had denied relief from a conviction by applying one test established under the doctrine, denominated as a “same evidence” test, the opposite result would have been compelled by a second test, denominated as a “same transaction” test, also established under the doctrine. McWilliams, 634 S.W.2d at 823 (citing Robinson v. State, 530 S.W.2d 592 (Tex.Crim.App.1975)). Referring again to these two divergent and apparently unreconcilable tests for determining whether a particular prosecution would be forbidden under the carving doctrine, the Texas Court of Criminal Appeals suggested that its prior carving doctrine decisions “lack[ed] [ ] precedential value.” Id. In deciding to abandon the doctrine, the court concluded that “[t]he doctrine of carving is unsound and its application has been erratic.” Id. at 824. Subsequently, in Ex parte Clay, 675 S.W.2d 765 (Tex. Crim.App.1984) (en banc), cert. denied, 470 U.S. 1029, 105 S.Ct. 1399, 84 L.Ed.2d 787 (1985), the court gave retroactive effect to McWilliams’ abolishment of the carving doctrine defense. In that decision, the court noted again the “conflict” between the two tests for determining whether a prosecution could be avoided under the doctrine. Id. at 767.
Under Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), no ex post facto violation occurs unless a defendant is “substantially disadvantaged” by a retroactive application of law.1 450 U.S. at 29, 101 S.Ct. at 964; see also Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 2451-52, 96 L.Ed.2d 351 (1987) (discussing Weaver). The threshhold question that arises under Weaver — and that remains unanswered by the majority — is whether a criminal defendant can be substantially disadvantaged when the judicial doctrine that defines the “substantial” right purportedly denied to the defendant is so contradictory, and its application by the courts so erratic, that the outcome of the defendant’s case under the doctrine is itself uncertain.
The majority’s discussion of Kring v. Missouri, 107 U.S. (17 Otto) 221, 27 L.Ed. 506 (1883), does not resolve this issue. Kring’s initial plea of guilt to second degree murder made him legally innocent of a higher degree crime under the Missouri state constitution as it existed at the time of his crime. However, the second degree conviction was reversed on a sentencing issue. Upon amendment of the Missouri state constitution, the trial court rejected Kring’s claim of legal innocence to first degree murder under the former constitution. Instead, Kring was retried for first degree murder — a capital crime. He was convicted and sentenced to death. Under the facts of Kring, the effect of a retroactive application of the Missouri constitutional amendment was absolutely clear: by eliminating a defense previously available to Kring — legal innocence of a higher degree crime — the retroactive application of the law through a second prosecution subjected Kring to a greater punishment for his crime. Kring was premised on a clearly delineated defense that, at the time of his crime, was absolute and entirely predictable. The issue before the Court in Kring was not whether abrogation of the defense operated to the substantial disadvantage of Kring — everyone knew that the disadvantage was the death sentence — but whether the change in law was procedural. 107 U.S. (17 Otto) at 446. In McWilliams, on the other hand, the Texas court clearly articulated that its prior carving doctrine *1277decisions lacked precedential value because they provided no single, cognizable rule for predicting the circumstances under which a carving doctrine defense would be successful. At first blush, it is far from clear that recission of the defense here would substantially disadvantage Rubino since its effect, according to the Texas court, was entirely unpredictable. Kring did not address this issue.
Furthermore, the same uncertainty regarding the “prosecutability” of a crime under the carving doctrine raises the additional question whether the policies which undergird the ex post facto clauses would be furthered by an ex post facto holding in this case. In Miller, the Supreme Court restated the dual concerns which underlie an ex post facto inquiry: “ ‘the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.’ ” 107 S.Ct. at 2451 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964). Applying “fair notice” and “governmental restraint” concerns to this case, is it fair to state that the fickle carving doctrine gave notice to Rubino that a particular prosecution (and its attendant punishment) would be avoided, creating a reliance interest? And did the retroactive abrogation of the doctrine reflect vindictive or abusive lawmaking? An affirmative answer to either question would buttress an ex post facto holding in this instance — but only if the threshhold inquiry, whether a retroactive recission of the carving doctrine results in a “substantial disadvantage” to a criminal defendant, also were true. I, therefore, focus first on this threshhold inquiry.
To determine whether Rubino has been substantially disadvantaged by the retroactive abrogation of the carving doctrine, the relative posture of a criminal defendant, both pre- and post-McWilliams, first must be determined. Although the carving doctrine appears to evade capture as a definitive rule of law, both McWilliams and Clay indicated that the alternative tests or prongs of the doctrine — which defined its breadth — were well established, even if un-reconcilable. In Clay, the Texas Court of Criminal Appeals clearly equated the less favorable prong of the carving doctrine, which it called the “same evidence” test, with a double jeopardy inquiry under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Clay, 675 S.W.2d at 767. Because this less favorable prong of the doctrine, according to the Clay court, is the equivalent of Blockburger, it necessarily survived the carving doctrine through the constitutionally mandated double jeopardy defense. Hence, a criminal defendant suffers no substantial disadvantage by the retroactive repeal of the “same evidence” prong of the carving doctrine so long as Texas courts give effect to extant Blockburger jeopardy doctrine, which state courts, of course, are required to do under the supremacy clause.
However, the alternative test under the carving doctrine, which the Texas Court of Criminal Appeals labeled the “continuous assaultive transaction” test, in some cases provided a broader basis for barring a prosecution than the “same evidence” test. In other words, in instances in which the “same evidence” test did not bar prosecution, a “continuous assaultive transaction” analysis might have done so. McWilliams, 634 S.W.2d at 823 (citing Robinson, 530 S.W.2d at 592). Therefore, since the Texas court in Clay confirmed that the “same evidence” test survived as a Blockburger double jeopardy inquiry, a double jeopardy analysis limited to such an inquiry necessarily falls short of the protections embodied in the former “continuous assaultive transaction” test, which applied a more favorable standard for denying multiple prosecutions. This abridgement of the bases available for barring a prosecution was the effect plainly intended by the McWilliams court, which justified its repeal of the carving doctrine on the logic that “prosecution for each of the separate offenses” was necessary to effectuate a policy of deterrence through increased punishment. 634 S.W.2d at 822. Clearly, the “continuous assaultive transaction” test of the carving doctrine provided a more favorable basis for avoiding multiple prosecutions than *1278currently is available to a Texas criminal defendant.
However, while recognizing that elimination of the more favorable prong of the carving doctrine generally disfavors criminal defendants seeking to avoid multiple prosecutions, to be ex post facto, the change in law still must substantially disadvantage the individual who is claiming the protection of the doctrine. Weaver, 450 U.S. at 29, 101 S.Ct. at 964. It is here that the fickleness of the Texas doctrine intervenes. Because of the apparently “erratic” and undisciplined application of the two carving doctrine tests by Texas courts, a criminal defendant such as Rubino cannot show that his particular case would have been entitled to evaluation under the more favorable “continuous assaultive transaction” test while the doctrine was still in effect. Thus, since no scheme existed under the carving doctrine to guide Texas courts in determining which of the two tests to apply, and perhaps because the tests themselves are heavily fact dependent, the “continuous assaultive transaction” test represented to a criminal defendant nothing more than a possibility that the court might apply a more favorable standard in ruling whether a multiple prosecution would be barred. Nonetheless, it is clear to me that, despite the doctrine’s undisciplined application in the courts, the McWilliams court, by eliminating the carving doctrine, did eliminate the opportunity for a court to invoke the “continuous as-saultive transaction” test, and it did foreclose the attendant possibility that a court would reject a prosecution as prohibited by this more favorable arm of the doctrine. Hence, the real effect of a retroactive application of McWilliams is that a defendant is denied the possibility that the court will apply a more favorable standard than the Blockburger double jeopardy standard for rejecting a prosecution, and that denial of this more favorable standard thereby abridges the defendant’s opportunity for a lesser punishment — punishment for one crime rather than multiple crimes arising out of a particular criminal transaction.
Having determined the extent to which a retroactive abolishment of the carving doctrine will alter the rights of a criminal defendant in Texas courts, I must determine whether the change in the law has substantially disadvantaged Rubino for purposes of the ex post facto doctrine. I conclude that it has. Under Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), a lawmaker cannot retroactively foreclose even the possibility that a criminal defendant would receive a lesser sentence than was potentially available at the time the crime was committed. In Lindsey, the law effective at the time of Lindsey’s offense provided for a minimum sentence of six months and a maximum sentence of fifteen years. At the time Lindsey was sentenced, the law provided for a mandatory fifteen-year sentence. Finding that retroactive application of the mandatory fifteen-year sentence was ex post facto, the Supreme Court noted, “It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the fifteen-year term.” 301 U.S. at 401-02, 57 S.Ct. at 799 (emphasis added). Similarly, to deny Rubi-no the opportunity to avoid prosecution under the most favorable sweep of the law as it existed at the time of his crime, the “continuous assaultive transaction” test, is plainly to his substantial disadvantage.
The Court in Lindsey further explained that “the ex post facto clause looks to the standard of punishment prescribed by a [judicial doctrine], rather than to the sentence actually imposed.” Id. The petitioner in Lindsey could claim no entitlement to a particular sentence under the law as it existed at the time of his crime; that determination, within the range provided, was at the sole discretion of the trial court. But the Court held that, even where the sentence actually imposed was within the range of possible punishments at the time of the crime, the “removal of the possibility of a sentence of less than fifteen years” —at the trial court’s discretion — operated to substantially disadvantage Lindsey. Id. (emphasis added). Similarly, the fact that Rubino apparently would not have been *1279absolutely entitled under the carving doctrine to application of the more favorable test, the “continuous assaultive transaction” test, does not negate the fact that, prior to the doctrine’s recission, the possibility existed that the court would choose to employ the broader prong of the doctrine. Under Lindsey, Rubino need not prove that he was actually disadvantaged by elimination of the carving doctrine defense — i.e., that his second prosecution actually would have been barred by the court under the “same assaultive transaction” test. The retroactive elimination of the broader potential to avoid a multiple prosecution (and therefore its attendant punishment) constituted a substantial disadvantage.
However, a determination whether Rubi-no was “substantially disadvantaged” by retroactive abolishment of the carving doctrine does not end here. Rubino received the full measure of due process to which he was entitled at the trial court level. At the time when the trial court evaluated — and rejected — Rubino’s carving doctrine defense, which Rubino had raised pretrial with a special plea in bar, the Clay decision had not yet issued. In denying Rubino’s special plea in bar,2 the trial court applied a “same evidence” test. In addition, the court applied a version of the “continuous assaultive transaction” test which focused on whether the elements of one offense had been completed prior to the commission of another offense. See, e.g., Ex parte Joseph, 558 S.W.2d 891, 893 (Tex.Crim.App.1977). Of course, as discussed above, Ru-bino was not entitled to a specific test under the doctrine, but merely to have the court determine the “prosecutability” of the offense under any prong of the doctrine. This the court did. Rubino’s due process claim in the ex post facto abolishment of his defense therefore arises solely out of the Texas Court of Criminal Appeals’ refusal to review the trial court’s disposition of the special plea in bar. Thus, the issue becomes one whether, for purposes of an ex post facto analysis, the denial of appellate review substantially disadvantages a criminal defendant.
The Supreme Court’s recent decision in Miller v. Florida, — U.S.-, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), clearly established that a denial of an otherwise established right to appellate review constitutes a “substantial disadvantage” within reach of the ex post facto doctrine. In Miller, the petitioner received a seven-year sentence. Under Florida law in effect at the time of Miller’s crime, a seven-year sentence was outside the range of punishment presumed correct for Miller’s offense; the sentencing judge could have imposed such a sentence, but the judge would have been required to provide a written explanation for imposing the sentence, setting forth clear and convincing reasons based upon facts proven beyond a reasonable doubt. Further, the sentence would have been reviewable on appeal. Under the new guidelines, which the sentencing court applied, a seven-year sentence was presumptively correct. 107 S.Ct. at 2452. The Supreme Court rejected retroactive application of the new sentencing guidelines because they “foreclosed [Miller’s] ability to challenge the imposition of a sentence longer than his presumptive sentence under the old law.” Id. at 2452. Likewise, I find that Rubino may not be foreclosed from challenging the trial court’s, disposition of his carving doctrine defense. Although the Texas Court of Criminal Appeals’ prior decisions under the doctrine may have been erratic, Rubino nonetheless is entitled to pursue the defense to its full potential, particularly since the review powers of the Texas Court of *1280Criminal Appeals appear to be plenary with respect to this doctrine.
Having determined that, under Lindsey and Miller, the retroactive abolishment of the carving doctrine substantially disadvantaged Rubino, I also conclude that the policies of “fair notice” and “governmental restraint,” which underlie an ex post facto analysis, would be furthered by an ex post facto finding in this case. The majority opinion, when reviewing the policies embodied in the ex post facto doctrine, focuses on a perceived vindictive or abusive motive by the state in prosecuting Rubino for the attempted murder, having already obtained a conviction for aggravated kidnapping. However, I cannot ascribe a vindictive motive to the state — as the majority appears to do — merely for prosecuting a defendant, who undeniably has committed a crime, when the Texas Court of Criminal Appeals itself, the definitive arbiter of Texas criminal law, disclaims any ability to distill a rule from its prior decisions which would differentiate those prosecutions forbidden under the carving doctrine. Furthermore, the principle of “governmental restraint” in the ex post facto context restricts the actions of lawmakers, not law enforcers. See Miller, 107 S.Ct. at 2451. Thus, I find no restraint problem in the state’s decision to prosecute Rubino for attempted murder; I am convinced, nonetheless, that the principle of restraint applies here to the Texas Court of Criminal Appeals’ decision to repeal an established legal defense.
The McWilliams court specifically articulated a basis for repealing the carving doctrine that, while generally legitimate and even compelling, raises concerns of governmental vindictiveness if retroactively applied. The court opened its opinion on rehearing in McWilliams with the following explanation of its reasons for discarding the carving doctrine:
We now abandon the carving doctrine for the compelling reason that it encourages crime. When the carving doctrine may be applied to a situation in which a defendant robs, kidnaps, rapes, and murders his victim, the defendant suffers no more punishment than he would had he committed only one of the crimes. Justice and reason demand prosecution for each of the separate offenses so that a robber will be deterred from kidnapping, raping, and murdering the victim.
634 S.W.2d at 822 (emphasis added). The Texas court clearly recognized that the effect of its action was to increase punishment for multiple offenses arising out of a criminal transaction. In fact, the court’s intent was to discourage crime by allowing each offense to be punishable. The power to so alter its law clearly rests with the Texas court, but the court’s malcontent with the carving doctrine’s operation may not be visited retroactively upon Rubino. Policies of individual deterrence, by definition, are forward-looking rather than retroactive.
Furthermore, “fair notice” principles also are implicated here. The fact that sentencing guidelines in Miller — or the outcome under a judicial doctrine in this case — may be changeable, discretionary or uncertain does not invalidate the prescribed range of punishments extant at the time of the offense. “The constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.” Miller, 107 S.Ct. at 2451-52. Thus, the apparently inconsistent applications of the carving doctrine, while reflecting that the dual tests were inconsistent, did not negate Rubino’s reliance that the doctrine nonetheless would be applied. Nor does a court’s discretion to choose among a range of punishments negate a criminal defendant’s reliance that the full spectrum of punishments, including the most lenient, will be available to the sentencing court. Lindsey, 301 U.S. at 401-02, 57 S.Ct. at 799. Under the Supreme Court’s decisions in Miller and Lindsey, Rubino had a reliance interest in the carving doctrine as it existed at the time his crimes were committed.
Despite the fickle character of the Texas carving doctrine, Rubino still suffers a substantial disadvantage by retroactive denial of review of the trial court’s disposition of the defense. For the foregoing reasons, I CONCUR in the majority’s decision to certi*1281fy to the Texas Court of Criminal Appeals the question answered once already at the trial court level:
Whether, if treated as still in effect, the carving doctrine would have barred Rubi-no’s prosecution for attempted murder?
As the majority points out, our analysis of state law questions is directed solely towards resolving the ex post facto issue raised by Rubino; the Texas Court of Criminal Appeals remains the final authority on the substance of Texas criminal law. This concurrence reaches no farther than the constitutional issue, and makes no evaluation or analysis of the proper disposition of this question under Texas law.
. The ex post facto clauses, article I, sections 9 and 10, of the United States Constitution, are directed only towards retroactive legislation. However, as noted by the majority and conceded by the parties, ex post facto principles apply here to retroactive state judicial rulings under a fifth- and fourteenth-amendment due process analysis. 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.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964).
. The concluding paragraph of the trial court's ruling set forth the court’s basis for denying Rubino’s special plea in bar:
The Court further finds that it will be necessary for the State to prove different elements in trying the Defendant George Anthony Rubi-no for the offense of Attempted Murder, and even though both said offenses being the Aggravated Kidnapping and the Attempted Murder are assaultive offenses, 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 alleged in Cause F-78-8476-IL, and therefore find [sic] that the Defendant’s Special Plea in Bar, based on the reasons set forth in said plea, should be and the same is hereby in all things denied.