                                     NUMBER 13-09-612-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                                IN RE: ARLEN RAY TENBERG


                            On Petition for Writ of Mandamus.


                               MEMORANDUM OPINION

                     Before Justices Yañez, Benavides, and Vela
                       Memorandum Opinion by Justice Vela

        Relator, Arlen Ray Tenberg, pro se, filed a motion for leave to file original application

for writ of mandamus,1 alleging that respondent, the Honorable Robert C. Cheshire,

presiding judge of the 24th Judicial District Court of DeWitt County, Texas, abused his


        1
          The Texas Rules of Appellate Procedure no longer require the relator to file a m otion for leave in an
original proceeding. See generally T EX . R. A PP . P. 52 & cm t.
discretion in failing to rule on relator’s motion,2 which asserted respondent improperly

cumulated his sentences for intoxication manslaughter and intoxication assault. We deny

relief.

                                             I. PROCEDURAL HISTORY

          Relator was indicted for intoxication manslaughter, a second-degree felony (trial

court cause no. 05-07-10,230), see TEX . PENAL CODE ANN . § 49.08(a), (b) (Vernon Supp.

2009), and he was indicted for intoxication assault, a third-degree felony (trial court cause

no. 05-07-10,231). See id. § 49.07(a), (c). The indictments alleged that both offenses

occurred on or about June 10, 2005. On April 20, 2006, relator pleaded nolo contendere

to the offense of intoxication manslaughter and was sentenced to twelve years’

imprisonment.3 On that same date and pursuant to a plea-bargain agreement, he pleaded

nolo contendere to the offense of intoxication assault. Respondent sentenced him to ten

years’ imprisonment, suspended the term of incarceration, and placed him on ten years’

community supervision, plus a $1,500 fine and 300 hours of community service. The

judgment stated, in relevant part: “This sentence shall run CONSECUTIVE TO THE CASE

AS SET FORTH BELOW.” (emphasis in original). Page four of this judgment4 stated, in

relevant part: “The Court orders that the sentence SUSPENDED in this cause shall run



          2
              The appellate record includes a copy of this m otion.

          3
          The appellate record does not include a copy of the judgm ent pertaining to the intoxication-
m anslaughter offense. Relator’s assertion that he pleaded nolo contendere to this offense is gleaned from
his m otion, which asserts that respondent im properly cum ulated his sentences. The term of im prisonm ent
and date of sentence for this offense is obtained from the judgm ent pertaining to the intoxication-assault
offense.

          4
              The last page of this judgm ent is not included in the record before us.
                                                           2
consecutively and shall begin WHEN THE JUDGMENT AND SENTENCE in the following

case; 05-07-10,230, Intoxication Manslaughter, DeWitt County, Texas, 12 YEARS TDCJ

SENTENCED ON APRIL 20, 2006; SHALL HAVE CEASED TO OPERATE.” (emphasis

in original).

       On August 27, 2009, relator filed a pro se motion,5 arguing that although he

“pleaded nolo contendere to each offense and was convicted and sentenced, in

accordance with a plea bargain agreement in which he specifically accepted the imposition

of consecutive sentences in a single criminal action at which the trial Court [sic] accepted

as a valid waiver of his right to concurrent sentences[,]” a defendant may not by agreement

render legal a punishment that is not otherwise authorized by law.                To this date,

respondent has not ruled on this motion.

                                        II. DISCUSSION

       In a single issue, relator contends the respondent abused his discretion in failing to

rule on his motion, which asserted respondent improperly cumulated his sentences for

intoxication manslaughter and intoxication assault.

A. Standard of Review

       The standard for mandamus relief articulated by the court of criminal appeals

requires the relator to establish that: 1) “he has no adequate remedy at law to redress his

alleged harm[;]” and 2) “he must show that what he seeks to compel is a ministerial act, not


       5
       This m otion, which is included in the appellate record, is entitled “MOTION TO CORRECT AN
UNAUTHORIZED ORDER OF CONSECUTIVE SENTENCES OF JURISDICTIONAL DEFECT AND ABUSE
OF DISCRETION BY THE TRIAL COURT.”
                                               3
involving a discretionary or judicial decision.” State ex rel Young v. Sixth Judicial Dist.

Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (citing De

Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004)). The latter requirement “is

satisfied if the relator can show he has ‘a clear right to the relief sought’–that is to say,

‘when the facts and circumstances dictate but one rational decision’ under unequivocal,

well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly

controlling legal principles.” Id. (quoting Buntion v. Harmon, 827 S.W.2d 945, 947, 948 n.2

(Tex. Crim. App. 1992))6 (emphasis in original).                      If the relator fails to meet either

requirement of this two-part test, then relief should be denied. Id.

B. Applicable Law

        Generally, an accused has no right to concurrently serve sentences imposed for

different offenses; rather, the decision to cumulate sentences lies within the trial court’s

discretion. DeLeon v. State, 294 S.W.3d 742, 745 (Tex. App.–Amarillo 2009, no pet.); see

TEX . CODE CRIM . PROC . ANN . art. 42.08(a) (Vernon 2006). This discretion is absolute so

long as the law authorizes cumulative sentencing. DeLeon, 294 S.W.3d at 745. However,

when multiple offenses arising out of the same criminal episode are consolidated for a

single trial, and the accused is found guilty of more than one offense, section 3.03(a) of the

penal code provides a limit on the trial court’s discretion to cumulate the sentences. Id.;


           6
             Put another way, “an act m ay be regarded as ‘m inisterial’ when the facts are undisputed and, given
those undisputed facts, ‘the law clearly spells out the duty to be perform ed . . . with such certainty that nothing
is left to the exercise of discretion or judgm ent.’” State ex rel Healey v. McMeans, 884 S.W .2d 772, 774 (Tex.
Crim . App. 1994) (quoting Texas Dep’t of Corrections v. Dalehite, 623 S.W .2d 420, 424 (Tex. Crim . App.
1981)).
                                                         4
see TEX . PENAL CODE ANN . § 3.03(a) (Vernon Supp. 2009). Until 1995, section 3.03

required sentences for multiple offenses prosecuted in a single trial to run currently.

DeLeon, 294 S.W.3d at 745. That year, the legislature amended section 3.03 to restore

the trial court’s discretion to impose consecutive sentences for multiple intoxication

manslaughter convictions resulting from a single trial.7 Yvanez v. State, 991 S.W.2d 280,

282 (Tex. Crim. App. 1999); see TEX . PENAL CODE ANN . § 3.03(b)(1) (Vernon Supp. 2009).

        In Yvanez, the court of criminal appeals held that a trial court had no discretion to

order an intoxication-manslaughter sentence to run consecutively to a sentence for

intoxication assault. 991 S.W.2d at 282-83. The court of criminal appeals reformed the

trial court’s judgment in Yvanez because intoxication assault was not then an enumerated

offense under section 3.03(b), and the trial court’s cumulation of a sentence for intoxication

manslaughter with one for intoxication assault violated the language of section 3.03(b) that

sentences may run consecutively if “each sentence” is for a conviction of one of the

enumerated offenses. Id. Effective September 1, 2005, the legislature amended section

3.03(b) to add intoxication assault to the enumerated offenses. Act of May 23, 2005, 79th

Leg., R.S., ch. 527, §§ 1, 3, & 4, 1429, 1429-30 (current version at TEX . PENAL CODE ANN .

§ 3.03(b)(1)(A) (Vernon Supp. 2009)).8 Thus, for offenses listed in section 3.03(b), the trial

        7
           See Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 3435, 3435 (current version at T EX . P ENAL
C OD E A N N . § 3.03(b)(1) (Vernon Supp. 2009)).

        8
            Section 3.03(b)(1)(A) provides:

                  (b) If the accused is found guilty of m ore than one offense arising out of the sam e
        crim inal episode, the sentences m ay run concurrently or consecutively if each sentence is
        for a conviction of:

                   (1) an offense:
                                                      5
court, in its discretion, may order commencement of the second sentence after completion

of the first sentence. DeLeon, 294 S.W.3d at 745.9

           Relator contends that because the offenses for which he was sentenced occurred

prior to the effective date of the 2005 amendment to section 3.03(b), the law did not

authorize the respondent to cumulate his sentences. Even if this argument is correct,

relator still faces an obstacle to relief from the cumulation order. In Ex parte McJunkins,

the applicant pleaded guilty and was sentenced in accordance with a plea-bargain

agreement in which he specifically accepted the imposition of consecutive sentences in a

single-criminal action. 954 S.W.2d 39, 41 (Tex. Crim. App. 1997) (op. on reh’g). The court

held that applicant’s “decisions not to request a severance, and to accept the imposition

of consecutive sentences imposed in a single criminal action for two offenses arising out

of the same criminal episode, were valid waivers of his right to concurrent sentences.” Id.

Here, relator stated in his pro se motion that he “pleaded nolo contendere to each offense

and was convicted and sentenced, in accordance with a plea bargain agreement in which

he specifically accepted the imposition of consecutive sentences in a single criminal action

at which the trial Court [sic] accepted as a valid waiver of his right to concurrent sentences

. . . .”



                    (A) under Section 49.07 or 49.08, regardless of whether the accused is convicted of
           violations of the sam e section m ore than once or is convicted of violations of both sections;
           ....

T EX . P EN AL C OD E A N N . § 3.03(b)(1)(A). Sections 49.07 and 49.08 refer intoxication assault and intoxication
m anslaughter, respectively.

           9
         See also Gonzalez v. State, Nos. 04-08-00156-158-CR, 2009 W L 222159, at *1 (Tex. App.–San
Antonio Jan. 28, 2009, pet. ref’d) (m em . op., not designated for publication) (holding that “an express statutory
exception perm its the sentences to run consecutively for intoxication m anslaughter and intoxication assault
offenses.”).
                                                         6
       Nevertheless, assuming without deciding that respondent improperly cumulated

relator’s sentences, an improper cumulation of sentences is subject to habeas corpus

relief. Ex parte Vasquez, 712 S.W.2d 754, 754 (Tex. Crim. App. 1986). The habeas

corpus procedure set out in article 11.07 of the Texas Code of Criminal Procedure provides

the exclusive remedy for felony post-conviction relief in state court. TEX . CODE CRIM . PROC .

ANN . art. 11.07, § 5 (Vernon Supp. 2009); Bd. of Pardons & Paroles ex rel. Keene v. Court

of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995); Ex parte

Brown, 662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (per curiam). If the habeas corpus

applicant is held by virtue of a final conviction in a felony case, the writ is returnable to the

Texas Court of Criminal Appeals. TEX . CODE CRIM . PROC . ANN . art. 11.07, § 3(a); Brown,

662 S.W.2d at 4. There is no role for the courts of appeals in the procedure under article

11.07. TEX . CODE CRIM . PROC . ANN . art. 11.07, § 3; see Ater v. Eighth Court of Appeals,

802 S.W.2d 241, 242 (Tex. Crim. App. 1991) (orig. proceeding) (stating that only the court

of criminal appeals has jurisdiction over state post-conviction felony proceedings).

       “A sentence unauthorized by law is fundamental error, rendering the sentence void.”

Harvill v. State, 13 S.W.3d 478, 482 (Tex. App.–Corpus Christi 2000, no pet.). The court

of criminal appeals has “long held that a claim of an illegal sentence is cognizable on a writ

of habeas corpus. Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) (citing

cases).

C. Analysis

       Tenberg’s motion for leave to file original application for writ of mandamus fails to

demonstrate that his rights to obtain a remedy by a writ of habeas corpus were inadequate


                                               7
to address the error he now asserts. Accordingly, he has failed to satisfy the first

requirement of the criminal-mandamus standard, i.e., that there is no adequate remedy at

law to redress the alleged harm. See State ex rel Young, 236 S.W.3d at 210. Petition for

writ of habeas corpus is generally an adequate remedy that will preclude mandamus relief.

In re Piper, 105 S.W.3d 107, 109 (Tex. App.–Waco 2003, orig proceeding); see Banales

v. Court of Appeals for the Thirteenth Judicial Dist., 93 S.W.3d 33, 36 (Tex. Crim. App.

2002) (orig. proceeding). Accordingly, we overrule the sole issue for review.

                                    III. CONCLUSION

       We deny mandamus relief.



                                               ROSE VELA
                                               Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 14th
day of January, 2010.




                                           8
