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O P I N I O N

When applicant appea led his conviction in 1992, the controlling p r e c e d e n t f or the application

of Texas Penal Code Section 3.03 was Caughorn v. State , 549 S.W .2d 196 (Tex. Crim. App. 1977).
Caug horn plead g uilty to two offe nses on the same day during “a single action.” He was place d on probation but was later revoke d and sentenc ed to a term of imprisonment. The trial court cumulated

the sentenc es. Caug horn cha lleng ed that ruling on appea l, but this Court upheld the cumulation.

I n applicant’ s case , a jury convicted him of two offe nses on the same day in “a single action”

in 1991 and sentenc ed h i m t o prison. On appea l in 1992, the court of appea ls aff irmed his2

co n v i ction. Four months afte r applicant’ s appea l failed to obtain relief , this Court ov er ru l ed
Caughorn

. LaPorte v

. State , 840 S.W .2d 412 (Tex. Crim. App. 1992). Applicant now challeng es

the cumulation of his sentenc es in this application for a writ of habea s corpus. Both the trial court

and the state urg e us to g rant relief in the form of the deletion of the cumulation order , and we shall

do so.
Using the ver sion of Section 3.03 that was in e ffe ct at the time, the Caughorn court stated,

I t i s appellant’ s position that V.T.C.A. Penal Code, Sec. 3.03, prohibits the cumulation of his sentenc es. This section is as follows:

“When t he accuse d is found guilty of more tha n one off ense arising out of the same criminal episode p rosec uted in a single action, sentenc e for eac h offe nse for which he has been found g uilty shall be pronounce d. Such sentenc es shall run c oncurr ently .”

V.T.C.A. Penal Code define s “cr iminal episode” as follows: “I n this chapte r, ‘cr iminal episode’ means the repe ated commission of any one offe nse define d in title 7 of this code ( Offe nses Ag ainst Property ).” [1 ]

. . .
Howeve r, appellant by re l y i ng on V.T.C.A. Penal Code, Secs. 3.01 and 3.03, completely ignor es the limit ations contained within V.T.C.A. Penal Code, Sec. 3.02.
Chapter 3 of the Penal Code is entitled “Multiple Prosecutions.” This chapte r for the first time in the history of Texas Criminal J urisprudenc e permits more than one

A s t h e L a P o r t e C o u r t n o t e d i n i t s f o o t n o t e 3 , “ I n 1 9 8 7 , S e c t i o n 3

. 0 1 w a s a m e n d e d t o e x p a n d t h e d e f i n i t i o n 1

o f ‘ c r i m i n a l e p i s o d e ’ t o p e r m i t a g r e a t e r v a r i e t y o f o f f e n s e s t o b e j o i n e d o r c o n s o l i d a t e d f o r t r i a l :

‘ I n t h i s c h a p t e r , “ c r i m i n a l e p i s o d e ” m e a n s t h e c o m m i s s i o n o f t w o o r m o r e o f f e n s e s , r e g a r d l e s s o f w h e t h e r t h e h a r m i s d i r e c t e d t o w a r d o r i n f

l i c t e d u p o n m o r e t h a n o n e p e r s o n o r i t e m o f p r o p e r t y , u n d e r t h e f o l l o w i n g c i r c u m s t a n c e s :

‘ ( 1 ) t h e o f

f e n s e s a r e c o m m i t t e d p u r s u a n t t o t h e s a m e t r a n s a c t i o n o r p u r s u a n t t o t w o o r m o r e t r a n s a c t i o n s t h a t a r e
c o n n e c t e d o r c o n s t i t u t e a c o m m o n s c h e m e o r p l a n ; o r

‘ ( 2 ) t h e o f

f e n s e s a r e t h e r e p e a t e d c o m m i s s i o n o f t h e s a m e o r s i m i l a r o f f e n s e s

. ’ ”

L a P o r t e , 8 4 0 S

. W

. 2 d a t 4 1 4 n

. 3

.3

offe nse to be pleade d in the same char g ing instrument provided they arise out of the

same criminal episode as define d above. Thus, sever al offe nses may be consolidated in one indictment or information. Also, an innovation under the new Penal Code is the rig ht of the State to join sever al char g ing instruments into a single criminal action if they arise out of the same criminal episode. Howeve r, in order to acc omplish this, the State must file written notice of this action not less than 30 day s prior to trial. No such not ice was filed i n these causes. Ac cording ly , even thoug h appellant plea ded g uil t y t o t wo indictments char g ing simi lar offenses, this did not constitute a si ng le criminal action beca

use the State had not filed the written notice nece ssary to achie ve such results. Since these cause s did not constitute o n e criminal action under Sec. 3.02, supra , the prohibi tion ag ainst cumulation of sentenc es provided in Sec . 3.03, supra , does not apply

. The judg ments are aff

irmed.
Caughorn , 549 S.W .2d at 197 (footnote a dded).

I n J une of 1992, afte r applicant’ s direc t appea l was decide d in Fe bruar y of 1992, this Court

found that the court of appea ls’s interpre tation of Section 3.02 was “cle arly err oneous” and overr uled
Caughorn and its prog eny

. LaPorte , 840 S.W .2d at 414. We ag ree with the LaPorte Court that its
interpre tation of Section 3.02 is more in alig n m en t wi th the plain lang uag e of the statute and,

there fore , its interpre tation should be applied to complaints about cumulation order s that are within
the purviewof Section 3.03.

The LaPorte Court held that Chapter 3 should be rea d as a whole: if the require ments of
Chapter 3 for a “cr iminal episode” are satisfied and the offe nses alleg ed are tried in a single criminal
action, Chapter 3 applies. Whil e the State should g ive the notice require d in Section 3

. 0 2 (b),
noncompliance with the notice provision “does not take the proce eding out of Chapter 3 and

somehow chang e it from a single criminal action involving consolidation of ‘same criminal episode’

offen s es i n t o a non-Chapter 3 joinder trial. Section 3.02(b) is ‘mere ly ’ a proce dural require ment

which can be waived if a defenda nt so chooses either affirmatively or by inaction.” LaPorte , 8404

S.W .2d at 414. The Court also observe d that a defe ndant may be g iven notice of the state’s intention

to consolidate multipl e offe nses for trial if the offe nses are alleg ed in the same char g ing instrument.

Id.

Fr om all of this, it is clea r the L eg islature intended “a single criminal action” to ref er to a single trial or plea proce eding

. This notice provision of Section 3.02(b) does not chang e the nature of the proce eding as a single criminal action involving Chapter 3 when the offense s arise out of the same criminal episode. T he lang uag e of Chapte r 3 and the history of joinder and consolidation in light of the 1973 Penal Code mandate this interpre tation. These provisions provide a trade -off ; a prosec ut o r is

encour ag ed to clea

r case dockets by try ing more than one case in a si n gl e trial whene ver multipl e offe nses arising from a single criminal episode are alleg ed ag ainst

a single defe nd an t , an d a defe ndant benef its by not being burdene d with the possibili ty

of conse cutive sente nces a nd a string of trials for offe nses arising out of

a single criminal episode. Section 3.04 provides a defe ndant the rig ht to have separ ate trials if he so desires. Section 3.02(b) provides a defe ndant with 30 day s notice that the State is g oing to proce ed in a single trial on more than one indictment, so that he may have time to decide whether he wants separ ate trials. I f no such notice is g iven he may either object to the lack of the notice when he discovers the State intends to prosec ute for offe nses based upon more than one indictment in a single trial, m ay reque st the sever ance provided by Section 3.04, or may waive the notice and proce ed to trial on any

char g es pre sented by

the State by

not objecting to the lack of notice. I f he objects to the lack of notice, the State would then have the option of proce eding

on one indictment or of seeking a rese tting of the trial so as to provide adequate notice. I t is inconsistent with the obvious intent of C hapter 3 to allow t he S tate the benef it of prese nting evidenc e of more than one offe nse while deny ing the defe ndant t h e b enefit of concur

rent sentenc ing, solely beca use the State never g ave form al notice of intent to consolidate pr osecution of se para te indictments in a single trial.

Id . at 414-15.

The Court then stated that an “improper cumulation order is, in essenc e, a void sentenc e, and

such err or cannot be waived.” Id

. at 415. I t conclude d that a void sentenc e can be raised at any time

and does not require a contempora neous objection to prese rve err or. Id. I t did not addre ss the issues

of whether the state complied with t h e notice require ment and whether the defe ndant prese rved a complaint about any

lack of such ser vice.5
Analysis

Whil e we ag ree with the LaPorte Court that the op i n i o n in Caughorn misint erpr eted the

statute, we note that the LaPorte decision con fl at ed t he sentenc e with the stacking order , and we

disavow the lang uag e in LaPorte that holds that the sentenc es wer e void. The sent en ce s wer e lawfully assessed within the statutory limit s and wer e neither void nor voidable. The problem was

the stacking order , which aff ects only the Texas Depa

rtment of Criminal J ustice’s calc ulation of how

the assessed terms of imprisonment will be serve d. And any judgme nt that conta i n s an err or or 2
irreg ularity that can be reme died by a nunc pro tunc order or that can be ref ormed on appea l is not

void. Hughes v. State , 493 S.W .2d 166, 170 (Tex. Crim. App. 1973) (citing B a r ke r v. State , 169

Tex. Crim . 277, 334 S.W .2d 182 (Tex. Crim. App. 1960)).

I n response to our briefing order , both appli ca n t an d t he state have discussed Ex parte

T o w n s end , 137 S.W .3d 79 (Tex. Crim. App. 2004), in which this Court denied rel i ef i n

circ umstances that, at first g lance , appea r simil ar to those prese nt in this case

. Howeve r, on closer
inspection, it is clear tha t the circ umstances a re sig nificantly

differ ent.

I n this case , a jury convicted applicant of two offe nses on the same day in “a single action”

and sentenc ed applicant to two terms of imprisonment. He thus fell square ly within the purview of

Section 3.03. Townsend, howeve r, in 1 9 9 0 p l ea d guilty to, and was convicted of, a single

offe nse–possession of coca ine. After h e co m p l eted boot camp, the trial judge place d him on probation. I n Fe bruar

y of 1992, he was found g uilty of murder. The trial court sentenc ed him to 60

y ear s’ imprisonment for that offe nse. On the same day , it revoke d Townsend’ s proba t i o n an d

W e n o t e t h a t , i f t h e s e n t e n c e s w e r e a c t u a l l y v o i d , d e l e t i n g t h e s t a c k i n g o r d e r w o u l d b e i m p r o p e r

. T h e o n l y 2

c o r r e c t r e m e d y w o u l d b e t o r e m a n d t h e c a s e f o r a n e w s e n t e n c i n g h e a r i n g

.6

assessed a term of ten y ear s’ imprisonment, stacke d onto the sentenc e for m u rder. Thus, in

Townsend’ s case , he was tried and convicted of one off ense in “ a sing le ac tion” in 1990 and tried

and convicted of a second, unrela ted offe nse in a second “sing le action” in 1992. He was not “found

g uilty of more than one offe nse arisi n g o ut of the same criminal episode prosec uted in a single
action”; the offe nses wer e unrela ted and wer e not prosec uted in a single action nor did the char g ed

offe nses arise from the same criminal episode. T h u s , he fell outside the purview of S ection 3.03,

and the c umulation order wa s proper

.
Howeve r, the Townsend Court decide d that case on the basi s t h at Townsend had had the
opportunity to appea l the stacking order but had failed to do so. “The re was nothing to preve nt the 3
applicant from raising this claim on direc t appea l. He had an adequate reme dy at law. Be cause the
applicant did not raise the issue on direc t appea l, the applicant has forf eited his claim.” Townsend ,
137 S.W .3d at 81. And because Town s en d fo rfe ited that claim by failing to raise it on appea l, he

could not there afte r ra ise it for the fir st tim e on an a pplication for a

writ of habe as cor

pus.

At the time applicant filed his application for a writ of habea s corpus, his situ at i o n wa s

differ ent from Townsend’ s

. W h en the faulty cumulation order was enter ed by the trial court in
applicant’ s ca s e, ap p l i ca nt had no reme dy at law that was adequate to corr ect the improper
cumulation; he could not ha ve been g rante d relief

in the trial court beca

use Caughorn was settled 4

law. Nor could he have asser ted a LaPorte claim on direc t appea l beca use LaPorte was not decide d

T o w n s e n d ’ s w r i t a p p l i c a t i o n a s s e r t e d t h a t t h e s t a c k i n g o r d e r w a s i m p r o p e r b e c a u s e h e h a d a l r e a d y b e g u n 3

s e r v i n g h i s s e n t e n c e f

o r t h e 1 9 9 0 c o n v i c t i o n , a n d , p u r s u a n t t o E x p a r t e B a r l e y , 8 4 2 S

. W

. 2 d 6 9 4 ( T e x

. C r i m

. A p p

. 1 9 9 2 ) , t h e s e n t e n c e f

o r t h e 1 9 9 2 c o n v i c t i o n c o u l d n o t b e s t a c k e d o n t o i t

.

“ H a b e a s c o r p u s i s a n e x t r a o r d i n a r y r e m e d y a n d i s a v a i l a b l e o n l y w h e n t h e r e i s n o o t h e r a d e q u a t e r e m e d y a t 4 l a w ” a n d “ m a y n o t b e u s e d t o a s s e r t c l a i m s t h a t c o u l d h a v e b e e n a s s e r t e d o n d i r e c t a p p e a l

. ” E x p a r t e C r u z a t a , 2 2 0 S

. W

. 3 d 5 1 8 , 5 2 0 ( T e x

. C r i m

. A p p

. 2 0 0 7 )

.7

until four months afte r applicant’ s conviction was aff irmed. Given applicant’ s inability to raise this
issue on appea l, his sole reme dy lies in a writ of ha beas c orpus pursuant to Te x . Code Crim. Proc.

art. 11.07.

A violation of a statute invokes a defe ndant’s due-pr ocess rig hts, a cate g ory -2 Marin rig ht. 5

As LaPorte holds, the interpre tation of Chapter 3 in Caughorn g rossly misint erpr eted the lang uag e

of the statute and eleva

ted proce dural form over statutory su b s t an ce, there by vesting complete

control of the proce eding s in the state, which could, mere ly by choosing not to file a piece of paper , deprive the defe ndant of a statutory rig ht to concur rent sentenc es. “I t is inconsistent with the obvious

intent of C hapter 3 to allow t he S tate the benef it of presenting evide n ce o f m o re than one offense

w h il e deny ing the defe ndant the benef it of concur

rent sentenc ing, solely beca use the State never g ave

formal notice of intent to consolidate prosec ution of separ ate indictments in a single trial.” LaPorte ,
840 S.W .2d at 415.

I n its “Response to application for writ of habea s corpus,” filed on J anuar y 29, 2013, the state

asser ted a g ener al denial, raised lache s, then asked the trial court for an order d es i gnating issues
(ODI ) and for additional time to revie w t he record so that it could respond to applicant’ s claim of

a void sentenc e.

I n order to proper ly respond to Applicant’ s al l egations, the State must revie w the repor ter’s r ecor d and cle rk’s re cord of the trial conduc ted in the instant c ause. The undersig ned attorney has reque sted that Applicant’s file be retrie ved from re m o te

“ T h u s , o u r s y s t e m m a y b e t h o u g h t t o c o n t a i n r u l e s o f t h r e e d i s t i n c t k i n d s : ( 1 ) a b s o l u t e r e q u i r e m e n t s a n d 5
p r o h i b i t i o n s ; ( 2 ) r i g h t s o f l i t i g a n t s w h i c h m u s t b e i m p l e m e n t e d b y t h e s y s t e m u n l e s s e x p r e s s l y w a i v e d ; a n d ( 3 ) r i g h t s o f l i t i g a n t s w h i c h a r e t o b e i m p l e m e n t e d u p o n r e q u e s t

. ” M a r i n v

. S t a t e , 8 5 1 S

. W

. 2 d 2 7 5 , 2 7 9 ( T e x

. C r i m

. A p p

. 1 9 9 3 )

.
“ T h e n a t u r e o f t h e r i g h t G r a d o s e e k s t o v i n d i c a t e l e a d s u s t o c o n c l u d e t h a t i t i s o n e t h a t i s a s i g n i f i c a n t f e a t u r e o f o u r j u d i c i a l s y s t e m a n d s h o u l d b e c l a s s i f i e d a s a M a r i n c a t e g o r y
- t w o r i g h t

. I n t h e a b s e n c e o f a d e f e n d a n t ’ s e f

f e c t i v e w a i v e r , a j u d g e h a s a n i n d e p e n d e n t d u t y b o t h t o i d e n t i f y t h e c o r r e c t s t a t u t e u n d e r w h i c h a d e f e n d a n t i s t o b e s e n t e n c e d a n d t h e
r a n g e o f p u n i s h m e n t i t c a r r i e s a n d t o c o n s i d e r t h e e n t i r e r a n g e o f p u n i s h m e n t i n s e n t e n c i n g a d e f e n d a n t i r r e s p e c t i v e o f

a d e f e n d a n t ’ s r e q u e s t t h a t h e d o s o

. ” G r a d o v

. S t a t e , 4 4 5 S

. W

. 3 d 7 3 6 , 7 4 1 ( T e x

. C r i m

. A p p

. 2 0 1 4 )

.8

storag e. Upon rec eipt of this file, the State will supplement this response

. The State reque sts that this Court issue an order desig nating issues and g ather ev i d en ce by revie wing the Court’s own rec ords to deter mine the merit, if any , to [si c] Applicant’s claims.

Habe as Recor d at 32.

On Fe bruar

y 5, 2013, the trial court enter ed an ODI and appointed a mag istrate to c onsider
the question, “I s Applicant’s sente nce void? ” Ha beas Rec ord at 41.

On September 24, 2013, the state filed its “Supplemental response to application for writ of

habea s corpus.” The response descr ibed the proce dural status of the case , summarized the fac ts of

the offe nses for which applicant was convicted, and incorpora ted the initial response by ref ere nce.

I t then addre ssed the cla im of void sentence and conc luded that
[i t] is clea r from the rec ord that both case s wer e part of t h e s ame criminal episode and wer e tried in a sin gl e cr i m i n al action. Acc ording ly , under Section 3.03 of the Texas Pena l Code , the sentenc e in the underly ing case should ha

ve been order ed to be serve d concur

rent to the sentenc e in Cause No. F91- 01032-HI

. T h er ef o re, the State ag ree s with Applicant that the portion of t h e o rd er cumulating Applicant’s sentenc e in this case with the sentenc e i n C au se No. F91- 01032-HI is not permissible. Applicant is, there fore , entitled to relief in this habea s application to the extent that the cumulation order should be deleted, and the sentenc e in the underly ing offe nse order ed to be serve d concur rent to his sentenc e in Cause No. F91- 01032-HI

.
Habe as Record at 47. I n conclusion, the state “re spectfully reque st[ ed] tha t this [t rial] Court g rant
Applicant’s Application for Writ of Habe as Corpus.” Ha beas Rec ord at 48. The trial court ag ree d

and ente red f

indings of f

act.

These two case s wer e part of the same criminal episode an d wer e tried in a single criminal ac tion.

T h e sentenc es should have been order ed to be serve d concur rently pursu an t t o Section 3.03.

The cumulation portion of the judgme nt should be deleted and the sentenc e order ed to be serve d concur

rently with Cause No. F 91-01032-[H]I

.9

The State agre es t h at relief should be g rante d as indicated by the Supplemental Response filed on Septembe r 24, 2013.

The trial court conclude d that applicant is leg ally confine d and restra ined, but that his sentenc es wer e improperly cumulated, that the cumulation order should be deleted, and that he “has been denied the
rig hts g uara

nteed him by the United States Constit ution or the Texas Constit ution.” Habe as Record

at 74-76. Whil e we disag ree with applicant’ s arg ument and past prec edent that indicates that his

sentenc e is void, we ag ree with the state and the trial court that the cumulation order was improper

and should be de leted.
The remaining issue is lache s. Applicant has waited twenty -two y ear s to raise this claim.

Often such a delay ed cl ai m fo r relief will be denied beca use of the state’s inability to addre ss the

issues that are raised. See, e. g

. , E x p arte Perez , 398 S.W .3d 206 (Tex. Crim. App. 2013). I n the

circ umstances o f t his case , the s tate’s ability to respond is unimpaired. I t has onl y to take note of

the statute, which it ha s done, and it ha s g rac iously urg ed this Court to delete the cumulation order
despite the long delay

.
We g rant relief and ref

orm the trial court’s judgme nt to delete the improper cumulation order

.

Deliver ed: Octobe r 28, 2015 Do not publish