







 
 
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 74,764


EX PARTE BARRYON TOWNSEND



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM NUECES  COUNTY



 Price, J., delivered the opinion of the Court, in which Keller, P.J., and
Womack, Keasler, Hervey, and Cochran, JJ., joined.  Holcomb, J., concurs in the
judgment.  Meyers, J., filed a dissenting opinion, in which Johnson, J., joined.

O P I N I O N


	This is a post-conviction application for a writ of habeas corpus before this Court
pursuant to Texas Code of Criminal Procedure Article 11.07. 
	In 1990, the applicant pleaded guilty to possession of cocaine, (1) was convicted, and
was sentenced to 10 years imprisonment.   He was sent to the Texas Department of
Criminal Justice's Special Alternative Incarceration Program (Boot Camp).  By May 6,
1991, the applicant had successfully completed Boot Camp, the trial court suspended his
sentence, and placed the applicant on probation for the remainder of his term.  On July 19,
1991, the State filed a motion to revoke probation alleging that the applicant had violated
the conditions of his probation.  On February 14, 1992, the applicant was found guilty of
murder (2) and was sentenced to sixty years' imprisonment.  On the same day, the trial court
revoked the applicant's probation and imposed a sentence of ten years' imprisonment.  The
trial court included a cumulation order in the judgment revoking probation whereby the ten-year sentence for possession of cocaine was stacked on the sixty-year murder sentence.  
	The applicant seeks relief; he alleges that the stacking order was improper because
he had already begun his sentence by attending Boot Camp.  We deny relief in this case
because we conclude that the applicant forfeited his constitutional claim by failing to raise
the issue on appeal.
	We have said that Article 42.08 of the Texas Code of Criminal Procedure gives the
trial court the discretion to cumulate a sentence with prior outstanding sentences if the
later sentence is imposed for the first time following the revocation of probation. (3) 
However, if the applicant has already served a portion of his sentence before the sentence
is suspended or probated, then a cumulation order may not be entered to stack the probated
sentence on a subsequent sentence because such would violate the constitutional protection
against being twice punished for the same offense. (4)
	This Court directly addressed this issue twelve years ago in Ex parte Barley.  In
Barley, we held that a cumulation order may not be entered, not only in cases where a
defendant has begun to serve his sentence or in cases where shock probation is revoked, but
also in cases where a defendant is sentenced to Boot Camp and is subsequently released on
probation. (5)  We held that the execution of the sentence for both offenses commenced when
the defendant was sent to Boot Camp. (6)  Barley had already begun serving time in both
concurrent sentences.  By later stacking the sentences, the trial court had interrupted one of
the sentences to have Barley begin serving another.  Consequently, cumulating the
sentences in Barley violated his constitutional protection against being punished twice for
the same offense. (7)
	Under Barley, a trial court is without authority to stack a prior sentence that an
applicant has already begun to serve in Boot Camp on the end of a subsequent sentence.
However, we overrule Barley to the extent that it stands for the proposition that an
applicant can raise this claim for the first time in an application for a writ of habeas corpus.
	"The Great Writ should not be used in matters that should have been raised on
appeal." (8)  Even a constitutional claim is forfeited if the applicant had the opportunity to
raise the issue on appeal. (9)  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. (10) 
	There was nothing to prevent the applicant from raising this claim on direct appeal. 
He had an adequate remedy at law.  Because the applicant did not raise the issue on direct
appeal, the applicant has forfeited his claim.
	We reaffirm today that when a defendant has an adequate remedy at law, the merits
of his claim may not be reviewed on an application for a writ of habeas corpus.  To the
extent that Barley holds that an improper stacking order claim may be brought for the first
time in an application for a writ of habeas corpus, it is overruled.
	We should not overrule precedent lightly, but Barley itself was in conflict with well
established precedent.  When conducting a reexamination of precedent, "we should take
into account the interests underlying the rule of stare decisis: Often it is better to be
consistent than right." (11)  Those interests have much less force, however, when the precedent
itself fails to produce consistency. (12)  When older precedent conflicts with a newer decision
that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the
more soundly reasoned decision.
	We reaffirm 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.  
	Relief is denied.

Date Delivered:  June 16, 2004.

Publish.
1.  Tex. Health & Safety Code § 481.115.
2.  Tex. Pen. Code § 19.02.
3.  See Pettigrew v. State, 48 S.W.3d 769, 771 (Tex. Crim. App. 2001) (citing Ex Parte
March, 423 S.W.2d 916 (Tex. Crim. App. 1968)).
4.  See Ex parte Barley, 842 S.W.2d 694, 695 (Tex. Crim. App. 1992) (citing Ex parte
Reynolds, 462 S.W.2d 605 (Tex. Crim. App. 1970)).
5.  See ibid. (citing Reynolds, 462 S.W.2d 605; O'Hara v. State, 626 S.W.2d 32 (Tex. Crim.
App. 1981)).
6.  See ibid.
7.  Ibid. (citing Reynolds, 462 S.W.2d 605).
8.  Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
9.  Ex parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996).  Although Gardner was
a plurality opinion, it is by no means the only case in which we have held that, if a defendant could have
raised a claim on direct appeal, he may not raise the claim in habeas proceedings.  In Ex part Grove,
571 S.W.2d 888, 890 (Tex. Crim. App. 1978), a unanimous opinion, we said, "Habeas corpus is an
extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our
original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is
an adequate remedy at law."  See also Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App.
1994).  
10. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).
11. Malik v. State, 953 S.W.2d  234, 236 (Tex. Crim. App. 1997). 
12. Ibid.
