           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-16,370-02



                EX PARTE WILL DONNELL SIMMONS, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. W91-00848-I(A) IN CRIMINAL DISTRICT COURT NO. 2
                           DALLAS COUNTY

       Y EARY, J., filed a dissenting opinion.

                                DISSENTING OPINION

       I agree with Judge Keasler’s critique of the Court’s opinion, and I join his dissent. I

write further to express additional reasons why I would not consider Applicant’s claim to be

cognizable in post-conviction habeas corpus proceedings. The short of it is that I would hold

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 raised for the

first time in an application for writ of habeas corpus brought under the auspices of Article

11.07 of the Texas Code of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 11.07. See

Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); Ex parte Moss, 446 S.W.3d
                                                                                       Simmons — 2


786 (Tex. Crim. App. 2014). Let me explain.

        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 correctly disavows “the language in LaPorte that holds that the sentences were void.”

Majority Opinion at 5. 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? 1

       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



       1
         We have long held that a sentence that is unauthorized because it is outside of the applicable
range of punishment may be challenged “at any time,” including for the first time in an Article 11.07
application for writ of habeas corpus. E.g., Ex parte Rich, 194 S.W.3d 508, 511-12 (Tex. Crim. App.
2006).
                                                                                Simmons — 3


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.”);

Ex parte 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.

       We have said that an appellant may not ordinarily complain of an illegally imposed

condition of probation for the first time on appeal. Speth v. State, 6 S.W.3d 530 (Tex. Crim.

App. 1999). We have explained that “the assessment of a particular condition of [probation]

will not ordinarily implicate an absolute feature of the system, not optional with the parties,

in the same way that a sentence that is manifestly outside the statutorily applicable range of

punishment does.” Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012). But we

have also elaborated that a condition of probation may be subject to challenge for the first
                                                                                     Simmons — 4


time on direct appeal if it should happen to violate “an absolute prohibition as envisioned by

Marin.” Id. In Gutierrez itself, we held that the appellant could complain of a condition of

probation that he leave the country—effectively imposing “banishment as an acceptable

punishment for the commission of a crime”—for the first time on appeal, under Marin,

because “a state trial court may no more order a convicted defendant to leave the State than

it may punish him with a sentence that is beyond the statutorily applicable range of

punishment.” Id. at 176. Because the deportation that was ordered as a condition of probation

“both invades a federal prerogative, in violation of the Supremacy Clause, and violates an

explicit and unqualified state constitutional prohibition[,]” we held that Gutierrez’s complaint

about that condition of probation was “not subject to ordinary principles of waiver or

procedural default.” Id. at 176-77.

       So, is an improper cumulation order more like an unauthorized sentence, or is it more

like the run-of-the-mill unauthorized conditions of probation in Speth? It seems to me that

what it comes down to in the present case is 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.2 I do not believe we can fairly say


       2
         The Court somewhat cryptically declares that “[a] violation of a statute invokes defendant’s
due process rights, a category-2 Marin right.” Majority Opinion at 7. If by this the Court means to
indicate that a claim that a cumulation order violates Chapter 3 of the Penal Code falls within
                                                                                       Simmons — 5


that a trial court’s decision whether to cumulate sentences implicates a systemic requirement

or prohibition in the sense that Marin contemplates.

        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 T EXAS P RACTICE: C RIMINAL P RACTICE AND P ROCEDURE § 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 actually required by statute to cumulate separate

sentences; they had no discretion to do otherwise. See, e.g., Smith v. State, 34 Tex. Cr. R.


category two of the Marin rubric, then I agree with Judge Keasler that it manifestly should not be
cognizable when raised for the first time in a post-conviction habeas corpus writ application. Such
a category of claim could be vindicated even when raised for the first time on appeal, but the failure
to raise it on appeal will forfeit it for purposes of a post-conviction writ application under Townsend.
It is only with respect to category one Marin rights that a claim may be raised “at any
time”—meaning even if raised for the first time on post-conviction collateral attack. Ex parte Sledge,
391 S.W.3d at 108.
                                                                                     Simmons — 6


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. Cr. 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. T EX.

C ODE C RIM. P ROC. art. 42.08(a); T EX. P ENAL C ODE § 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



       3
         Indeed, “[t]he historical record further indicates that a judge’s imposition of consecutive,
rather than concurrent, sentences was the prevailing practice.” Oregon v. Ice, 555 U.S. at 169.
                                                                                Simmons — 7


whether to impose them concurrently or consecutively. See Barrow, 207 S.W.3d at 380 (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 T EXAS

P RACTICE: C RIMINAL P RACTICE AND P ROCEDURE § 38:33, at 426 (3d ed. 2011) (“In effect,
                                                                                         Simmons — 8


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 under the rubric 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



       4
           Acts 1995, 74th Leg., ch. 596, § 1, p. 3435, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 667,
§ 2, p. 2251-53, eff. Sept. 1, 1997.
                                                                                  Simmons — 9


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. E.g., Ex parte

Crawford, 36 Tex. Cr. R. 180, 182, 36 S.W. 92, 92-3 (1896) (“The entry of cumulative

       5
           See note 1, ante.
                                                                                Simmons — 10


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) (Opinion 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 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. Ex parte San Migel, 973 S.W.2d 310, 311

(Tex. Crim. App. 1998). Short of that 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, I would 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
                                                                                Simmons — 11


system that we should regard it as adequate justification for extraordinary relief. Like LaPorte

himself, Applicant could have challenged our holding in Caughorn v. State, 549 S.W.2d 196

(Tex. Crim. App. 1977), in his direct appeal.

       Adding these objections to those of Judge Keasler, I respectfully dissent.




FILED:         October 28, 2015
DO NOT PUBLISH
