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



                 EX PARTE WILL DONNELL SIMMONS, Applicant



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

              M EYERS, J., filed a concurring opinion.

                          CONCURRING OPINION

       While I agree with the majority’s granting Applicant relief, I disagree with the

majority’s characterization of the mandate for concurrent sentences in this situation as a

right. Section 3.03(a) of the Texas Penal Code tells the trial court that when a defendant is

convicted of multiple crimes arising out of the same criminal episode that are prosecuted in

a single action, the sentences must run concurrently. Therefore, the court does not have the

authority to stack these types of sentences. This is different than the defendant having a right

which can be waived or forfeited.

       In this case, the improper stacking order is based upon the court’s lack of authority,
                                                               Simmons concurrence - Page 2

rather than the defendant’s assertion of a right. With the exception of the labeling of

concurrent sentencing as a right, I join the majority’s opinion.

                                                         Meyers, J.

Filed: October 28, 2015

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