            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

      K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., H ERVEY and
Y EARY, JJ., joined.

                               DISSENTING OPINION

       We filed and set Simmons’s application and called for briefing on three issues: (1)

whether Simmons’s improper-cumulation claim may be raised for the first time on habeas

in light of Ex parte Townsend;1 (2) whether Simmons’s sentences were improperly

cumulated; and (3) whether Simmons’s sentences are void or illegal. As I understand its

opinion, the Court answers these questions this way: Townsend does not apply, and therefore

Simmons’s claim may be brought for the first time on habeas because the sentence’s



      1
          137 S.W.3d 79 (Tex. Crim. App. 2004).
                                                    SIMMONS DISSENTING OPINION—2

cumulation order is now improper under LaPorte v. State2 (issued four months after his

convictions were affirmed on appeal). This case is much more complicated than the Court’s

opinion suggests. Because I harbor serious doubts about the cognizability of Simmons’s

claim and disagree with the Court’s analysis of precedent, I dissent.

                         I. Factual and Procedural Background

       A jury convicted Will Simmons of aggravated sexual assault and aggravated robbery

and assessed his punishment at confinement for life and forty years’ confinement,

respectively. Simmons was charged by separate indictments, but the two cases were tried in

the same proceeding. The judge ordered that Simmons’s life sentence began to run after the

expiration of the forty-year confinement term for the aggravated robbery. Simmons appealed

both convictions asserting three grounds unrelated to the judge’s cumulation order. The

court of appeals affirmed Simmons’s judgment as modified.3 Twenty-two years later, he

filed this application for writ of habeas corpus.

                  II. Cognizability of an Improper-Cumulation Claim

       As an initial matter, it is not clear why a violation of Texas Penal Code § 3.03 is

cognizable on habeas. In retrospect, it is a question this Court should have asked in earlier

cases entertaining the merits of improper-cumulation claims on habeas corpus, and perhaps

even in Townsend itself. “A writ of habeas corpus is available only for relief from

       2
           840 S.W.2d 412 (Tex. Crim. App. 1992).
       3
        Simmons v. State, Nos. 05-91-00503-CR & 05-91-00504-CR, 1992 WL 32965
(Tex. App.—Dallas Feb. 11, 1992, pet. ref’d) (not designated for publication).
                                                    SIMMONS DISSENTING OPINION—3

jurisdictional defects and violations of constitutional or fundamental rights.”4 Section 3.03

in effect at the time of Simmons’s conviction and appeal provided that, “When the accused

is found guilty of more than one offense arising out of the same criminal episode prosecuted

in a single criminal action, sentence for each for which he has been found guilty shall be

pronounced. Such sentences shall run concurrently.”5 I am not aware of any constitutional

right to have separate convictions run concurrently when tried in a single proceeding. 6 In

fact, current § 3.03 provides instances where sentences for specific offenses may run

concurrently or consecutively.7 Our more recent precedents instruct that this claim is not

cognizable.

       In Ex parte McCain, this Court held that a violation of Code of Criminal Procedure

Article 1.13(c) which states that the trial court must appoint counsel to a defendant before

the defendant may waive a jury trial was not cognizable on habeas corpus.8 Although Article

1.13(c) was a mandatory statute, this Court held that the failure to appoint counsel before




       4
         Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim. App. 2002) (citing, among
other cases, Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
       5
           T EX. P ENAL C ODE § 3.03 (West 1990).
       6
        See generally Oregon v. Ice, 555 U.S. 160 (2009) (holding that the Sixth
Amendment does not prohibit State from seeking to run multiple sentences
consecutively).
       7
           See T EX. P ENAL C ODE § 3.03(b) (West 2012).
       8
           Ex parte McCain, 67 S.W.3d at 206.
                                                    SIMMONS DISSENTING OPINION—4

McCain’s jury waiver did not encompass a fundamental or constitutional error.9 While

procedural errors or statutory violations may be reversible error on direct appeal, they are not

fundamental or constitutional errors as a basis for relief on a writ of habeas corpus.10 The

McCain Court further noted that “most provisions in the Code of Criminal Procedure are

‘mandatory’ in that they state a trial court ‘must’ or ‘shall’ do something in a particular

matter.”11 But this nonetheless does not elevate statutory violations to fundamental or

constitutional errors reviewable on habeas corpus. Like McCain, Simmons’s claim is based

on a statutory violation rendering a merits review inappropriate.

                          III. The Misinterpretation of Ex parte Townsend

       Even if Simmons’s claim is cognizable on habeas generally, the Court should not

reach the merits of Simmons’s claim. The Court recognizes that habeas corpus is only

available for a claim if an applicant could not have brought the same claim on appeal, and

therefore he is afforded no other adequate remedy at law.12 Yet at the same time, the Court

finds Townsend’s bar inapplicable and distinguishes Townsend on its facts from this case by

independently reviewing the merits of Townsend’s claim as if Townsend had raised a

violation of § 3.03, even though Townsend claimed that his cumulation order violated Code



       9
            Id. at 210.
       10
            Id.
       11
            Id.
       12
            Ante, at 6, n.4.
                                                    SIMMONS DISSENTING OPINION—5

of Criminal Procedure Article 42.08.13

       I find the Court’s attempt to distinguish Townsend based on its facts unpersuasive.

Townsend’s rejection of the contention that “an improper stacking order claim may be

brought for the first time in an application for a writ of habeas corpus”14 could not be clearer.

Moreover, there is nothing in Townsend that suggests its holding depended on an applicant’s

argument why a cumulation order is improper. Townsend specifically did not address the

merits of Townsend’s application.           The Court’s opinion ignores this even after

acknowledging that the Townsend Court decided that Townsend had an opportunity to appeal

the stacking order, but failed to do so.15 While Townsend was decided over twelve years

after Simmons’s appeal concluded, its holding was hardly new. It was the law before

Simmons’s conviction16 and is certainly the law today.17 Simmons’s improper-cumulation

claim was available on appeal and should have been litigated there first.

       The Court hangs its hat on the fact that LaPorte overruled previous law interpreting

the cumulative punishment statute four months after Simmons’s appeal concluded. The

Court incorrectly assumes that Townsend requires that an applicant would have actually


       13
            Ex parte Townsend, 137 S.W.3d at 80.
       14
            Id. at 81.
       15
            Ante, at 6.
       16
         Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (“The Great Writ
should not be used in matters that should have been raised on appeal.”).
       17
            Ex parte Moss, 446 S.W.3d 786, 788–89 (Tex. Crim. App. 2014).
                                                     SIMMONS DISSENTING OPINION—6

prevailed on appeal instead of just having the claim available on appeal. Cognizability has

never turned on the likelihood of appellate success. The question is whether Simmons could

have brought the claim on appeal. And Simmons had the same opportunity to challenge his

cumulation order that LaPorte did.

       The Court’s declaration that “[a] violation of a statute invokes a defendant’s due-

process rights, a category-2 Marin right”18 is jarring because it is unsupported as written.19

Because Townsend in part relies on error preservation to determine cognizability (i.e.,

whether a claim could have been brought on appeal), I generally support the inclusion of

Marin within our habeas corpus jurisprudence. But I cannot endorse this overly broad

statement of law for several reasons. First, a statutory violation, especially of this sort, is not

always a violation of a defendant’s due process rights. Second, a statutory violation is not

always a constitutional right immune from procedural default.20 Third, because § 3.03

confers a Marin category-two right,21 then Simmons’s claim would not be subject to

procedural default and would always be available on appeal absent an express, effective



       18
            Ante, at 7 (referring to Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)).
       19
          Cf. Ex parte McJunkins, 954 S.W.2d 39, 40–41 (Tex. Crim. App. 1997) (op. on
reh’g) (holding the rights conferred by Penal Code § 3.03 are waiver-only rights under
Marin).
       20
          E.g., Ex parte Heilman, 456 S.W.3d 159, 169 (Tex. Crim. App. 2015) (holding
that a defendant may forfeit a statute-of-limitations violation); Ex parte McCain, 67
S.W.3d at 206.
       21
            Ex parte McJunkins, 954 S.W.2d at 41.
                                                  SIMMONS DISSENTING OPINION—7

waiver. As a result, Townsend would require denying Simmons’s claim.

                               III. Is LaPorte Retroactive?

       I further understand the Court to give LaPorte retroactive effect, although this is not

expressly stated in its opinion, nor do I recall this Court ever saying so in the past. The

Court’s theory is that Simmons could not benefit from LaPorte’s holding that a “single

criminal action” is no longer defined by whether the State provided the statutorily required

notice. Had Simmons addressed his cumulation complaint to the court of appeals and failed

under Caughorn, he should have petitioned for this Court’s review. And had this Court

refused his petition or ruled adversely, Ex parte Drake would have permitted a merits review

of Simmons’s improper-cumulation claim in light of our subsequent opinion in LaPorte.22

For Simmons, however, Drake is unavailing. He did not raise the issue in the appellate court,

nor in this Court. Drake’s concern of fairness does not apply here. Unlike Drake, Simmons

did not do all he could to remedy his allegedly improper cumulation order. And unlike

Drake, he was not merely a victim of the shifting sands of the law—denied relief under then-

prevailing law, only for that law to be overruled shortly after his conviction was affirmed.

The Court does not attempt to explain why Simmons’s claim is controlled by LaPorte’s

holding that did not exist at the time of his trial and appeal. Without any explanation why




       22
         See Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (holding “a
previously litigated issue is subject to collateral attack where our prior judgment is
subsequently rendered void or where we have decided to apply relief retroactively after a
subsequent change in the law.”).
                                                  SIMMONS DISSENTING OPINION—8

LaPorte overcomes the usual presumption against retroactivity, I am unconvinced that it

does.

        The Court correctly disavows LaPorte’s language that sentences containing an

improper cumulation order are void.23 Yet the Court apparently leaves intact LaPorte’s

conclusion that a sentence containing an improper cumulation order may be raised at any

time,24 even for the first time on habeas. Even more troubling is the Court’s granting of

relief: “While we disagree with [Simmons’s] argument a nd past precedent that indicates that

his sentence is void, we agree with the [S]tate and the trial court that the cumulation order

was improper and should be deleted.”25 So on what basis is the Court granting relief?

        For the foregoing reasons, I dissent.




FILED: October 28, 2015

DO NOT PUBLISH




        23
             Ante, at 5.
        24
          LaPorte, 840 S.W.2d at 415 (“An 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.”).
        25
             Ante, at 9.
