Ex parte Carter

521 S.W.3d 344, 2017 WL 2458187, 2017 Tex. Crim. App. LEXIS 564
CourtCourt of Criminal Appeals of Texas
DecidedJune 7, 2017
DocketNOS. WR-85,060-01 & WR-85,060-02
StatusPublished
Cited by44 cases

This text of 521 S.W.3d 344 (Ex parte Carter) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Carter, 521 S.W.3d 344, 2017 WL 2458187, 2017 Tex. Crim. App. LEXIS 564 (Tex. 2017).

Opinions

OPINION

Keasler, 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.

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.

I,

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-cumu-lation claim.

II.

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 [347]*347in “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 cu-mulation order are themselves “void.” La-Porte arrived at this conclusion by mistakenly conflating the sentences with the cumulation order. In a bare improper-cu-mulation 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 cu-mulation 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 McJun-kins 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 La-Porte 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 Toumsend held that “[e]ven a constitutional claim is forfeited if the applicant had the opportu[348]*348nity 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-cumu-lation 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.

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Cite This Page — Counsel Stack

Bluebook (online)
521 S.W.3d 344, 2017 WL 2458187, 2017 Tex. Crim. App. LEXIS 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-carter-texcrimapp-2017.