specially concurring:
For the reasons set forth in my concurrence in Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir.1988), I concur in the conclusion reached by the majority that the Texas Court of Criminal Appeals’ retroactive application of 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), in this instance violated ex post facto principles. As in Rubino, the carving doctrine was in effect when the crime occurred. Like the petitioner in Ru-bino, Clay raised the carving doctrine defense at the trial court level prior to recission of the doctrine by the Texas Court of Criminal Appeals. Clay raised the defense with his second amended motion for new trial, claiming that his conviction for aggravated rape, as the conviction which carried the higher cause number, should be set aside under the Texas carving doctrine. The court overruled the motion, thereby denying the defense. Clay appealed. During the pendency of Clay’s appeal to the Texas Court of Criminal Appeals, that court abolished the carving doctrine with its decision in McWilliams. Subsequently, the court affirmed Clay’s conviction in a per curiam opinion on the authority of McWil-liams, refusing to review denial of the defense on its merits.
The retroactive denial of appellate review of the trial court’s disposition of Clay’s carving doctrine defense raised ex post fac-to considerations identical to those raised in Rubino. Hence, I CONCUR in the majority’s decision to certify 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 Clay’s prosecution for aggravated rape?
Once again, our analysis of state law is directed solely towards resolving the constitutional issue; this concurrence does not reach the disposition of the question certified to the Texas court.