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Ex parte Carter

Court of Criminal Appeals of Texas

June 7, 2017



          Keller, P.J., delivered the judgment of the Court and an opinion, in which Keller, P.J., and Hervey, and Yeary, JJ., joined and Newell, J., joined in part. Yeary, J., filed a concurring opinion. Newell, J., filed a concurring opinion, in which Hervey, J., joined. Alcala, J., filed a dissenting opinion, in which Richardson, J., joined. Richardson, J., filed a dissenting opinion. Keel, J., concurred. Walker, J., dissented.


          KEASLER, J.

         In these habeas corpus applications, Roger Carter asserts the trial judge improperly cumulated, or "stacked, " his burglary sentence and credit-card-abuse sentences. We filed and set Carter's applications to address whether his claims are cognizable in a habeas corpus proceeding. Because Carter could have appealed his bare statutory violation and record-based claims, we conclude they are not cognizable and deny Carter's applications.


         In two separate indictments, Carter was charged with burglary of a habitation and two counts of credit card abuse. Each indictment contained enhancement paragraphs. Without a plea bargain with the State, Carter pleaded guilty to all offenses and true to the enhancement paragraphs. Finding the enhancements to be true, the judge sentenced Carter to fifty years' confinement for the burglary and five years' confinement for each credit card abuse count. The judge ordered Carter to serve the credit-card-abuse sentences simultaneously, but only after the burglary sentence's expiration. The court of appeals rejected Carter's challenges to the judge's sentencing him as a habitual offender, and it affirmed the judgments.[1]

         Approximately five years after the court of appeals' mandate issued, Carter filed these applications for writs of habeas corpus asserting that, among other things, his sentences were improperly ordered to run consecutively. This Court remanded Carter's applications for findings of fact and conclusions of law on this ground.[2] The habeas judge found that Carter's improper-cumulation claim "is based on the record and could have been, but was not, raised on direct appeal." Because Carter could have raised this claim on direct appeal, the judge concluded that the claim was not cognizable in a habeas corpus proceeding. Accordingly, the judge recommended denying Carter's improper-cumulation claim.


         When a defendant is found guilty of more than one offense arising out of the same criminal episode and those offenses are prosecuted in a single criminal action, Texas Penal Code § 3.03(a) states, in relevant part, that "the sentences shall run concurrently."[3] In LaPorte v. State, this Court held that a defendant is prosecuted in "a single criminal action" whenever allegations and evidence of more than one offense arising out of the same criminal episode-as Texas Penal Code Chapter 3 defines that term-are presented in a single trial or plea proceeding.[4] A single trial or plea proceeding may exist regardless of whether the allegations are found in a single charging instrument or several or the State provided notice of its intent to try several charging instruments together.[5] The LaPorte Court further held that "[a]n improper cumulation order is, in essence, a void sentence, and such error cannot be waived. A defect which renders a sentence void may be raised at any time."[6]

         While we reaffirm LaPorte's statutory interpretation of "a single criminal action, " we overrule the opinion's holding that sentences subject to an improper cumulation order are themselves "void." LaPorte arrived at this conclusion by mistakenly conflating the sentences with the cumulation order. In a bare improper-cumulation order context, the infirmity lies in the order setting how the sentences will be served, not in the assessed sentences themselves. Labeling as void sentences falling within the statutorily prescribed range of punishment is inaccurate. An improper cumulation order may be remedied by reformation on appeal or, in the proper circumstance, a judgment nunc pro tunc.[7] Because the improper cumulation order is subject to such remedies, the sentences cannot properly be declared void.[8]

         We further conclude that LaPorte's holding that an improper-cumulation claim "may be raised at any time" does not control an improper-cumulation claim's cognizability in the habeas corpus context. This Court's opinion in Ex parte McJunkins would have supported Carter's assertion of an improper-cumulation point of error on appeal.[9] The McJunkins opinion reaffirmed LaPorte's holding insofar as LaPorte's improper-cumulation claim was properly before the Court in that case, not because his sentences were void, but by placing the rights § 3.03 conferred to a defendant into Marin v. State's procedural-default rubric.[10]The McJunkins Court held that § 3.03 confers a Marin waiver-only right-a right that must be implemented unless affirmatively waived.[11] McJunkins noted that the record in LaPorte did not contain a waiver, and therefore LaPorte's claim was viable on appeal.[12]

         LaPorte's broad holding-notably made in the context of an appeal-conflicts with this Court's established habeas corpus jurisprudence. Relying heavily on the axiom "The Great Writ should not be used in matters that should have been raised on appeal, " this Court in Ex parte Townsend held that "[e]ven a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal. This is because the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law."[13]Because of its sweeping language, Townsend is viewed as a defining point in our habeas corpus jurisprudence, but its holding was hardly new: If an applicant could have appealed the issue he now asserts on habeas, the merits of his claim should not be reviewed.[14]

         Townsend was sentenced to ten years' confinement to be served in the Texas Department of Criminal Justice's Special Alternative Incarceration Program ("Boot Camp").[15] After Townsend successfully completed Boot Camp, the judge suspended Townsend's sentence and placed him on probation for the remainder of his term.[16] While on probation, Townsend was found guilty of murder and sentenced to sixty years' confinement. On the same day Townsend was sentenced for the murder, the judge revoked Townsend's probation and imposed a sentence of ten years' confinement to begin after the sixty-year sentence.[17] Townsend challenged the cumulation order in an application for a writ of habeas corpus. Concluding that Townsend had an adequate remedy on direct appeal but failed to exercise it, we held he forfeited his claim on collateral review.[18] In Townsend, we denied the improper-cumulation claim and reaffirmed "our decisions holding that, when a defendant has an adequate remedy at law for his claim, he may not raise the claim in an application for a writ of habeas corpus."[19]

         Like Townsend, Carter could have pursued his improper-cumulation claims on appeal instead of raising them for the first time in this habeas corpus proceeding. In fact, Carter did appeal his sentences, albeit on other grounds. But nothing prevented him from raising on direct appeal the record-based claims he now asserts. Because the judge imposed cumulative sentences at punishment and the cumulation order appeared in the original judgments, Carter did not need to resort to collateral proceedings to supplement the record to support his claims. And as a Marin category two, waiver-only right, Carter's improper-cumulation claims were not subject to procedural default by inaction and could have been argued in his appeal.[20] Unlike Marin category-one requirements and prohibitions, Carter's claims may not be asserted for the first time in an application for a writ of habeas corpus.[21] By failing to assert his claims in the court of appeals, Carter forfeited them for habeas corpus purposes. His improper-cumulation claims, therefore, are not cognizable on collateral review.[22]

         Carter's improper-cumulation claims are also not cognizable for a much simpler, basic reason: they assert bare statutory violations. Continuing to extend LaPorte's holding to collateral review cases overlooks our own admonition that "[a] writ of habeas corpus is available only for relief from jurisdictional defects and violations of constitutional or fundamental rights."[23] Carter's habeas corpus applications allege that the judge abused her discretion by "stacking" his sentences because "[a]ll three charges were of the same criminal episode." From our reading of Carter's applications and their use of § 3.03's "same criminal episode" language, [24] we interpret Carter's complaint to be based on a violation of § 3.03. He does not allege a constitutional violation and he cannot identify a constitutional right to concurrent sentences.

         In Ex parte McCain, this Court held that a violation of Texas Code of Criminal Procedure Article 1.13(c), requiring a trial judge to appoint counsel to a defendant before the defendant may waive a jury trial, was not cognizable on habeas corpus.[25] Although Article 1.13(c) was a mandatory statute, this Court held that the failure to appoint counsel before McCain's jury waiver did not encompass a fundamental or constitutional error.[26] While procedural errors or statutory violations may be reversible error on direct appeal, they are not necessarily fundamental or constitutional errors that entitle an applicant to habeas corpus relief.[27] The McCain Court further noted that "most provisions in the Code of Criminal Procedure are 'mandatory' in that they state a trial court 'must' or 'shall' do something in a particular matter."[28] Despite § 3.03(a)'s command that sentences shall run concurrently, its violation is not cognizable on habeas corpus.[29]


         Having concluded that Carter's improper-cumulation claims are not cognizable on collateral review, we reject them. Carter's applications also assert that he was denied ineffective assistance of counsel. He alleged twenty-three individual bases for his ineffective-assistance-of-counsel claim. Despite liberally interpreting Carter's pro se applications, we cannot find any contention, whether inartfully pleaded or not, that trial counsel was deficient for failing to object to consecutive sentencing. Although we embrace liberal interpreting pro se applications, as a court of law we may not create claims that the Court sua sponte believes meritorious when they are not arguably present in an applicant's pleadings. We further conclude that Carter's ineffective-assistance-of-counsel claim and remaining claims are without merit. Carter's applications are denied.


          Yeary, J., filed a concurring opinion.

         I join the plurality's opinion. I write further only to amplify on the plurality's explanation of why Applicant's claim is not cognizable in post-conviction habeas corpus proceedings. The short of it is that a complaint about an unauthorized cumulation order simply does not invoke the kind of systemic requirement or prohibition that we should require of a claim that is not raised for the first time until an application for writ of habeas corpus brought under the auspices of Article 11.07 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 11.07. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); Ex parte Moss, 446 S.W.3d 786, 788-90 (Tex. Crim. App. 2014).

         In LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992), the Court declared that "[a]n improper cumulation order is, in essence, a void sentence, and such error cannot be waived. A defect which renders a sentence void may be raised at any time." Today the Court appropriately overrules LaPorte's holding that invalid cumulation orders are void. Plurality Opinion at 3.[1] The question we are left with is whether "an improper stacking order, " though it should not necessarily be equated with an unauthorized sentence, should nevertheless be regarded as something that may be "raised at any time, " including for the first time in a post-conviction application for writ of habeas corpus. Is an improper stacking order "in essence" the same as an unauthorized sentence-at least for purposes of deciding whether it should be subject to challenge for the first time in a collateral attack even though it could have been brought earlier on appeal?[2] See Moss, 446 S.W.3d at 788 (explaining that a claim that the trial court lacked jurisdiction is in the nature of a category one Marin issue, which can be raised for the first time in an initial post-conviction habeas corpus proceeding).

         We have recently determined that whether a claim may be raised for the first time in post-conviction collateral attack should be a function of whether that claim invokes category one of the so-called Marin categories of complaints: systemic requirements or prohibitions that are recognized by our criminal justice system as "essentially independent of the litigants' wishes." See Ex parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim. App. 2013) (citing Marin, 851 S.W.2d at 279, for the proposition that "[i]t is, of course, axiomatic in our case law that review of jurisdictional claims are cognizable in post-conviction habeas corpus proceedings. Moreover, we have recognized them to be cognizable without regard to ordinary notions of procedural default-essentially because it is simply not optional with the parties to agree to confer subject matter jurisdiction on a convicting court where that jurisdiction is lacking."); Moss, 446 S.W.3d at 788-89 (citing Marin in support of a holding that an applicant can raise an attack on the subject matter jurisdiction of a convicting court for the first time in a post-conviction writ application, notwithstanding the rule in Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004), that a claim that could have been raised on direct appeal, but was not, is forfeited for purposes of collateral attack). Whether an invalid cumulation order is cognizable when raised for the first time in a post-conviction writ application depends, according to this trend, upon whether the system has erected an absolute, nonnegotiable prohibition against the improper cumulation of sentences, such that it would not even be optional with the parties whether to cumulate those sentences.

         To me, then, the question in the present case therefore boils down to whether an improper cumulation order violates some systemic requirement (multiple sentences must be made to run concurrently) or systemic prohibition (multiple sentences may not be made to run consecutively) that is so critical to the proper functioning of the criminal justice system that we cannot tolerate any deviation from the norm, even at the behest of the parties. I do not believe it can fairly be said that a trial court's decision whether to cumulate sentences implicates a systemic requirement or prohibition in the sense that category one of Marin contemplates. It is, at most, a category two waiver-only right. See Plurality Opinion at 4 (citing Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997) (op. on reh'g), for the proposition that rights conferred by Section 3.03 of the Penal Code are waiver-only rights under the Marin rubric).

         As a matter of history and common law, the decision whether to impose separate sentences concurrently or consecutively has been assigned to the trial judge. Oregon v. Ice, 555 U.S. 160, 168-69 (2009). "Texas law gives a much larger role to the jury at sentencing than is traditionally the case in American law, but, in giving the judge the discretionary authority to determine whether sentences should be concurrent or consecutive, Texas follows the approach taken in almost every American jurisdiction." George E. Dix & John M. Schmolesky, 43A Texas Practice: Criminal Practice and Procedure § 46:146, at 244 (3d ed. 2011). "Texas is one of the few states that allow defendants the privilege, by statute, of opting for jury assessment of punishment. Even so, it is left to the trial court to determine whether multiple sentences will run consecutively or concurrently." Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006). That discretion to cumulate or not is largely-but not entirely-unfettered.

         Early on, trial courts in Texas were required by statute to cumulate (stack) separate sentences; they had no discretion to do otherwise. See, e.g., Smith v. State, 34 Tex. Crim. R. 123, 123-24, 29 S.W. 774, 775 (1895) ("Nor is there anything in the alleged error of the court making the sentence in this case cumulative of that pronounced against appellant in a preceding conviction. This action of the court is expressly enjoined by statute, and therefore the court did not err in this respect. Code Cr. Proc. [Article] 800 [1879]."); Cullwell v. State, 70 Tex. Crim. R. 596, 598, 157 S.W. 765, 766 (1913) (quoting Article 862 of the 1911 Code of Criminal Procedure, which was identical to former Article 800). The Legislature revised the statute in 1919, however, to authorize trial courts to impose either consecutive or concurrent sentences, at their discretion. Acts 1919, 36th Leg., ch. 20, § 1, p. 25, approved Feb. 19, 1919 (amending Article 862 of the 1911 Code of Criminal Procedure). See, e.g., Carney v. State, 573 S.W.2d 24, 27 (Tex. Crim. App. 1978) ("There is no 'right' to a concurrent sentence; whether punishment will run concurrently or cumulatively is within the discretion of the trial judge."). That provision may presently be found in Article 42.08(a) of the Code of Criminal Procedure, and it is echoed in Section 3.04(b) of the Penal Code. Tex. Code Crim. Proc. art. 42.08(a); Tex. Penal Code § 3.04(b). Thus, trial judges in Texas have had the authority to cumulate sentences from the beginning;[3] and, since 1919, they have also had the authority to order separate sentences to run concurrently. From 1919 on, there was no requirement or prohibition whatsoever with respect to the imposition of multiple sentences; it was up to the judge, in his unfettered discretion, to make the normative decision whether to impose them concurrently or consecutively. See Barrow, 207 S.W.3d at 380 (explaining that the trial judge's cumulation decision "is purely a normative decision, much like the decision of what particular sentence to impose within the range of punishment authorized by the jury's verdict").

         That changed-but only to a very limited extent-in 1974. For the first time, in Chapter 3 of the 1973 Penal Code, the Legislature provided for the consolidation for trial of certain offenses, namely, those arising from the "same criminal episode." Acts 1973, 63rd Leg., ch. 387, § 1, p. 883, eff. Jan. 1, 1974. "Same criminal episode" was originally defined narrowly to include only the repeated commission of property offenses, but in 1987, the Legislature significantly expanded upon that definition, to provide for the consolidation for trial of offenses representing "the repeated commission of the same or similar offenses[, ]" whether or not they were property offenses. Acts 1987, 70th Leg., ch. 387, § 1, p. 1900, eff. Sept. 1, 1987. A defendant was given the absolute option of insisting upon a severance, and hence, separate trials. But this choice came at a cost. If the defendant would agree to the consolidation, he could insist upon the imposition of concurrent rather than consecutive sentences, thus taking the normative decision away from the trial judge. This was his incentive to agree to consolidation. If, instead, he insisted on severing the separate offenses for trial, the statutory scheme reinstated the trial judge's unfettered discretion to make the normative decision on his own. See George E. Dix & John M Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 38:33, at 426 (3d ed 2011) ("In effect, concurrency of sentences is the defendant's 'reward' for not asserting his or her right to severance of the charges."). Subsequent amendments to Chapter 3 have reinstated the trial judge's discretion to impose either cumulative or concurrent sentences even when certain types of offense have been consolidated for trial, regardless of whether the defendant agrees to the consolidation of offenses or insists on severance;[4] but it remains the case that, for many Penal Code offenses for which the defendant consents to consolidated trials, he may insist upon the imposition of concurrent sentencing upon conviction.

         Does that contingent ability to insist upon concurrent sentencing rise to the level of a systemic requirement or prohibition in contemplation of Marin? To be sure, the last sentence of Section 3.03(a) of the Penal Code uses mandatory language: when the conditions of Chapter 3 are met, "the sentences shall run concurrently." But the use of mandatory language in a statute does not invariably signal a legislative understanding that the thing required is an indispensable feature of the criminal justice system. Cf. Ex parte Douthit, 232 S.W.3d 69, 72 (Tex. Crim. App. 2007) (quoting Ex parte McCain, 67 S.W.3d 204, 206 (Tex. Crim. App. 2002), for the proposition that "this Court has repeatedly held that . . . deviations from 'mandatory' statutes are not cognizable on a writ of habeas corpus"). Frankly, I do not know whether it is correct to say that the mandatory language of Section 3.03(a) has created (1) a conditional right of the defendant to insist on concurrent sentencing, or, instead (2) a limitation on the trial judge's otherwise broad authority to impose cumulative sentencing.

         But I do not think this ambiguity in terminology ultimately makes a difference to how we answer the question of which Marin category we should place it in. Regardless of whether Section 3.03(a) creates a right of the defendant or a limitation on the trial court's authority, it is a matter that the Legislature has essentially made optional with the parties. The State can avoid the "mandatory" limitation on the trial judge's authority to cumulate sentences by simply opting not to consolidate trials. And the defendant has the option to insist on the severance of trials if he thinks that is to his best advantage, though he thereby loses the Section 3.03(a) ability to insist upon concurrent sentences. Nothing about Chapter 3 of the Penal Code changes the fact that, for the better part of a hundred years in Texas, the decision whether to cumulate sentences has been left to judicial discretion. Nor does the relatively trivial limitation on that discretion, embodied in Chapter 3, remotely suggest that there exists in the criminal justice system either a nonnegotiable requirement of concurrent sentencing or an absolute prohibition against cumulated sentences. Thus, there is no justification for designating an improper cumulation order-like an unauthorized sentence[5]-to fall within Marin's first category.

         Over the years, this Court has occasionally proclaimed that improper cumulation orders are simply not subject to challenge in habeas corpus proceedings. See Ex parte Crawford, 36 Tex. Cr. R. 180, 182, 36 S.W. 92, 92-3 (1896) ("The entry of cumulative punishments in the final judgment and sentence certainly cannot be treated as void, and, not being void, [the applicant] cannot avail himself of the remedy of habeas corpus."); Ex parte Snow, 209 S.W.2d 931, 933 (Tex. Crim. App. 1948) (op. on reh'g) (quoting Crawford); Ex parte Hatfield, 238 S.W.2d 788, 791 (Tex. Crim. App. 1951) (citing Snow for the proposition that "[t]he entry of cumulative punishment in a sentence is not void, and habeas corpus will not avail to correct the entry thereof"). Notwithstanding that fact, the Court has frequently considered the merits of such claims when brought by inmates on collateral attack, oftentimes granting relief. See generally Ex parte Lewis, 414 S.W.2d 682 (Tex. Crim. App. 1967) (collecting cases); Ex parte Ashe, 641 S.W.2d 243 (Tex. Crim. App. 1982). We have most recently held (post-LaPorte) that only a cumulation order that is so deficient that the prison system cannot properly implement it may be regarded as "void"-and thus, cognizable-for purposes of post-conviction habeas corpus review. See Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998) (holding that an applicant must show that a cumulation order is so lacking in specifics that the prison system "in not properly cumulating his sentences" before it will be found to be "void, " and therefore challengeable, in post-conviction habeas corpus proceedings). Short of that extreme scenario, I do not regard challenges to cumulation orders to be of sufficient gravity to justify entertaining them in post-conviction collateral attack.

         To the extent that LaPorte supports the blanket proposition that a post-conviction habeas applicant should be able to challenge the trial court's authority to enter a cumulation order for the first time in a collateral attack, the Court is right to overrule it. Trial courts in Texas have always had the authority to enter cumulation orders, and Section 3.03(a)'s minimal encroachment upon that authority is not so critical to the efficacy of the criminal justice system that we should regard it as adequate justification for extraordinary relief. The plurality is right to conclude that, under Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997) (op. on reh'g), Applicant could have challenged the cumulation order for the first time on direct appeal. Plurality Opinion at 4. Having failed to do so, Applicant has forfeited the claim in a post-conviction collateral attack. Townsend, 137 S.W.3d at 81.

         With these additional observations, I join the plurality opinion.

          Newell, J., filed a concurring opinion in which Hervey, J., joined.

         We previously held in Ex parte Townsend that a defendant cannot raise a claim that the trial court lacked authority to cumulate or "stack" his sentences for the first time in a post-conviction application for a writ of habeas corpus. 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). In this case, Applicant seeks to challenge the trial court's cumulation order for the first time in a post-conviction application for a writ of habeas corpus. In light of Townsend, I agree with the Court's order denying habeas corpus relief.

         However, prior to our decision in Townsend, we held in LaPorte v. State that a complaint about an improper cumulation order may be raised at any time because the improper order results in a void sentence. 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). We have long held that a defect which renders a sentence void may be raised at any time. Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam); see also Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979) (habeas corpus relief will issue to a person in custody under a sentence which is void because the punishment is unauthorized). It seems like we necessarily overruled this portion of LaPorte when we held in Townsend that a challenge to an improper cumulation order cannot actually be raised at any time; it must be raised on direct appeal. But if we did not, the Court expressly overrules that portion of LaPorte today. I join these aspects of the Court's opinion.

         I also agree that Applicant's ineffective assistance claim does not fault counsel for her failure to object at trial to the trial court's cumulation order. The trial court reviewed the pleadings and the affidavit of

         Applicant's trial counsel and entered a finding of fact that Applicant did not claim that his attorney was ineffective for failing to challenge the cumulation of his sentences at trial or on appeal. Having reviewed the pleadings and the affidavit of trial counsel, I believe this finding is supported by the record. Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005) (holding that Court should defer to findings if they are supported by the record). Given that Applicant is not challenging the improper cumulation order as a subset of his ineffective assistance claim, I agree with the Court's decision to deny relief on that ground as well. Otherwise, I would have granted relief on Applicant's ineffective assistance claim.

         With these thoughts I concur.


          Alcala, J., filed a dissenting opinion in which Richardson, J., joined.

         This Court's judgment unjustly permits the incarceration of a person under circumstances in which the law absolutely disallows it. The consequence of today's plurality opinion is that Roger Dale Carter, applicant, will have to serve five additional years in prison beyond what the law permits under these circumstances. Applicant's habeas complaint is one founded in the theory that he will be unlawfully confined for five years beyond what the law permits due to the trial court's failure to abide by the terms of Section 3.03 of the Penal Code. Section 3.03 mandates that sentences such as the ones at issue here "shall run concurrently." See Tex. Penal Code § 3.03(a). The trial court had no discretion to cumulate applicant's sentences for these offenses that arose from the same criminal transaction and were resolved in the same proceeding. See id. Applicant, the State, and the habeas court appear to agree that the trial court's cumulation order violated the mandatory terms of Section 3.03 by ordering that applicant's credit card abuse sentences run consecutively to his burglary sentence.[1] Despite the fact that the interested parties agree that the cumulation order is erroneous, and despite the fact that our Texas Constitution has provided for a habeas remedy for this type of wrongful incarceration, today's plurality opinion denies applicant relief for his unlawful restraint. I disagree with this Court's plurality opinion because it denies applicant's two habeas complaints that provide independent and alternative grounds for habeas relief. Rather than reject applicant's claims, first, I would grant relief to applicant as to his ground that demonstrates that he is unlawfully restrained due to the trial court's wrongful cumulation order. Alternatively, second, I would remand applicant's ground that complains of ineffective assistance of trial and appellate counsel under the rationale that applicant's attorneys failed to challenge the wrongful cumulation order. For these reasons, I respectfully dissent.

         I. Habeas Relief is Appropriate For Restraint From Wrongful Cumulation Order

         It appears that the rationale for denying applicant's habeas claim with respect to the wrongful cumulation of his sentences is founded on two theories: (A) a theory that his claim is not cognizable in a habeas proceeding because it is a statutory-based complaint rather than one asserting a constitutional or jurisdictional violation, and (B) a theory that his claim is procedurally barred because he could have raised this complaint on direct appeal but failed to do so. I disagree with this Court's rationale as to both theories. As to the first theory, I conclude that the cumulation order here, which has the effect of extending applicant's incarceration for five additional years beyond what the law permits under these circumstances, violates applicant's federal constitutional right to due process and, therefore, his complaint constitutes a cognizable basis for habeas relief. With respect to the second theory, I would hold that applicant's request for habeas relief is not procedurally barred because complaints about improper cumulation orders may not be forfeited by mere inaction, regardless of whether the inaction occurs at trial or on appeal.

         A. Applicant's Complaint is Cognizable on Habeas as a Due Process Claim

         Applicant's challenge of the erroneous cumulation of his sentences is a cognizable basis for habeas relief by which he seeks a remedy for his unlawful restraint from a violation of his federal constitutional rights to due process. After reviewing the general principles governing habeas relief, I provide legal authority to show that applicant's complaint is a cognizable basis for habeas relief.

         1. General Principles for ...

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