           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-82,072-01



                EX PARTE KENNETH LASHON GREEN, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. CR38038 IN THE 385TH DISTRICT COURT
                         FROM MIDLAND COUNTY

       YEARY, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       Applicant, Kenneth Lashon Green, was charged with two counts of sexual assault.

Both offenses were consolidated in a single criminal action for trial, as they arose out of the

same criminal episode. T EX. P ENAL C ODE A NN. § 3.02(a). A jury convicted Applicant of both

counts, and he was sentenced, for each count, to confinement for four years. The trial court

ordered his sentences stacked.1

       With the assistance of counsel Applicant appealed, but the court of appeals affirmed


       1
         As used here, the word “stacked” refers to an order requiring that the sentences run
consecutively, pursuant to section 3.03 of the Penal Code. TEX . PENAL CODE ANN . art. 3.03.
                                                                                        GREEN — 2

the trial court’s judgment.2 Applicant next sought discretionary review in this Court, but his

pro se petition was dismissed as untimely.3 Applicant now appears before us seeking relief

through a post-conviction application for the writ of habeas corpus. T EX. C ODE C RIM. P ROC.

art. 11.07. He presents four grounds for relief, two of which, in my view, merit our

attention.4 First, in his third ground for relief, Applicant contends his appellate counsel was

ineffective for failing to argue on appeal that the sentences were improperly cumulated.

Second, in his fourth ground for relief, Applicant contends that this Court erred by dismissing

his petition for discretionary review as untimely.

        In a per curiam opinion handed down today, without addressing Applicant’s other

complaints, this Court observes that, in fact, Applicant placed his petition for discretionary


       2
          On direct appeal, Applicant’s counsel raised four issues. The first and second issues
complained that the prosecutor engaged in improper jury argument. The third issue complained that
the prosecutor improperly bolstered the victim’s testimony. And the fourth issue challenged the
denial of Applicant’s motion for directed verdict. Green v. State, No. 11-11-00273-CR, 2013 WL
4715692, *1 (Tex. App.—Eastland August 30, 2013, pet. dism’d) (mem. op, not designated for
publication).
        3
          In his petition for discretionary review, Applicant raised two grounds for review. The first
complained that his “counsel was ineffective in the Petitioner’s Direct Appeal for not raising the
issue of the Trial Court abusing [its] Discretion by illegally stacking the Petitioner’s sentenc[e.]”
Petition for Discretionary Review at 4. The second ground complained that the trial court erred by
failing to instruct the jury properly concerning his punishment. Neither of these issues was raised
or addressed in Applicant’s direct appeal.
       4
         Applicant’s first ground for relief contends that his trial counsel was ineffective for failing
to object to the stacking order. Applicant’s second ground for relief contends that he has been
punished twice in violation of the double jeopardy clause and the 14th Amendment of the U.S.
Constitution. I agree with the majority that these claims should be dismissed. See Ex parte Torres,
943 S.W.2d 469 (Tex. Crim. App. 1997) (explaining, “because granting an out-of-time appeal
restores the pendency of the direct appeal, any remaining substantive claims would become
premature, and hence, subject to dismissal”).
                                                                                         GREEN — 3

review in the prison mail system by the due date and this Court erred by initially dismissing

the petition as untimely filed. The Court therefore grants Applicant an opportunity to file a

new out-of-time petition for discretionary review and dismisses his remaining claims.5

        I agree with this Court that Applicant’s petition for discretionary review was

dismissed in error. However, in this case, we also are presented with a claim that Applicant

was denied effective assistance of counsel on direct appeal because his appellate counsel

failed to complain that the trial court erred by stacking his sentences. In my view, we should

address Applicant’s claim alleging ineffective assistance of his appellate counsel and grant

relief on that claim rather than only affording Applicant another opportunity to file a petition

for discretionary review.

        Addressing the standard of review for cases in which an applicant complains that his

counsel on appeal was ineffective for failing to raise a particular complaint, this Court has

explained the following:

        [T]o show that appellate counsel was ineffective for failing to assign a
        particular point of error on appeal, an applicant must meet the standard set out


        5
          At the risk of distracting from the other issues I discuss in this dissent, I also believe that
the Court’s majority opinion affords the wrong relief to Applicant in this case. The complaint for
which the Court grants relief is this Court’s own erroneous dismissal of Applicant’s petition for
discretionary review as untimely. Because this Court improperly dismissed the Applicant’s petition,
he is entitled to have his original petition reinstated by the Court and no more. Instead, this Court
appears to permit the filing of a new petition for discretionary review, which in my view is an
unwarranted windfall. Filing a new petition, the Applicant will have the ability to raise new claims
that truly would have been considered untimely had their filing followed the filing of the improperly
dismissed petition. This Court still retains possession of the petition that was dismissed. If the Court
decides it should only grant relief on this ground, it should simply reinstate the improperly dismissed
petition.
                                                                                  GREEN — 4

       in Strickland v. Washington. This requires a showing of both deficient
       performance and prejudice. An applicant must demonstrate that counsel’s
       decision not to raise a particular point of error was objectively unreasonable
       and that there is a reasonable probability that, but for counsel's failure to raise
       that issue, the applicant would have prevailed on appeal. “A reasonable
       probability is a probability sufficient to undermine confidence in the outcome”
       of the proceeding.

Ex parte Santana, 227 S.W.3d 700, 704-705 (Tex. Crim. App. 2007) (footnotes omitted).

Applicant must therefore demonstrate that: (1) his counsel’s decision not to raise an issue on

direct appeal about the stacking order in his case was objectively unreasonable, and (2) there

is a reasonable probability that, if the complaint had been raised, he would have prevailed on

appeal.

       Section 3.03 of the Texas Penal Code (which addresses when sentences arising out

of the same criminal episode must be served concurrently and when they may be served

consecutively) provides, “[i]f the accused is found guilty of more than one offense arising

out of the same criminal episode, the sentences may run . . . consecutively if each sentence

is for a conviction of: (2) an offense: (A) under . . . 22.011 . . . committed against a victim

younger than 17 years of age at the time of the commission of the offense. . . .” T EX. P ENAL

C ODE A NN. § 3.03(b)(2)(A). Applicant was tried, convicted, and sentenced for two counts

of sexual assault, both arising under Section 22.011 of the Penal Code. T EX. P ENAL C ODE

A NN. § 22.011(a)(1)(A) and (B). But the victim testified during the Applicant’s trial that she

was at that time already 22 years old. The State has also conceded in its answer to this

application for habeas relief that the victim’s birthday is June 7, 1989, and that she was 21
                                                                                  GREEN — 5

years, 3 months, and 9 days old on the day of the offense: November 15, 2010.

       Because Section 3.03(b)(2)(A) of the Penal Code permits the stacking of sentences

arising out of the same criminal episode for offenses only where the victim was younger than

17 at the time of the commission of the offense, and because the victim in this case was 21

at the time of the commission of the offense, that Section does not appear to permit the

sentences to be stacked in this case. It also appears that no other subsection within Section

3.03 justifies the stacking of sentences under the facts of this case. And I see no evidence that

Applicant agreed to stacking as part of a plea bargain or for any other reason.

       Applicant’s appellate counsel filed an affidavit with the trial court admitting that

“appellate counsel did not notice the error presented pursuant to Penal [C]ode [S]ection 3.03

(Vernon 2014).” He appears to concede therefore that he did not even consider raising a

complaint about the stacking order. What is certain is that our current controlling case law

would have permitted appellate counsel to challenge the trial court’s stacking order even in

the absence of an objection in the trial court record. LaPorte v. State, 840 S.W.2d 412, 415

(Tex. Crim. App. 1992). And the State conceded in its answer to this application that the trial

court’s stacking order should be set aside.

       It is clear to me why the convicting court has concluded that appellate counsel

provided ineffective assistance for failing to raise issue of the stacked sentences on direct

appeal. I agree with the convicting court. In my view, Applicant has demonstrated that: (1)

his counsel’s decision not to raise an issue on direct appeal about the stacking order in his
                                                                                GREEN — 6

case was objectively unreasonable, and (2) there is a reasonable probability that, had the

complaint been raised, he would have prevailed on appeal. Accordingly, I would find he is

entitled to relief on the claim that he received ineffective assistance of counsel on direct

appeal. See Ex parte Santana, 227 S.W.3d at 704-705.

       This Court’s opinion granting Applicant a new opportunity to file a petition for

discretionary review certainly affords some relief to which Applicant is entitled. But in my

view it affords relief akin to a nicely wrapped gift box containing nothing at all. Applicant’s

appellate counsel did not complain on direct appeal about his improperly stacked sentences.

Applicant did raise, in his pro se petition for discretionary review that was improperly

dismissed as untimely by this Court, the very same claim that he now reiterates in his habeas

application and for which I find he is entitled to relief.6 But, under our existing precedent,

he cannot get relief on that ground through a petition for discretionary review. On

discretionary review, he can only raise complaints about errors that were first raised in the

court of appeals. See, e.g., Gallups v. State, 151 S.W.3d 196, 200 (Tex. Crim. App. 2004)

(dismissing as improvidently granted two grounds that were not raised or addressed by the

court of appeals); Whatley v. State, 946 S.W.2d 73, 76 n. 6 (Tex. Crim. App. 1997)

(explaining that this Court would not address a complaint that had not been first raised in the

court of appeals). What good does granting the out-of-time petition do for Applicant at this

point that simply granting him habeas corpus relief immediately does not better accomplish?



       6
           See note 3, ante.
                                                                                   GREEN — 7

       Immediately granting Applicant a new appeal, by contrast, would afford him

appropriate relief on a meritorious habeas claim that his appellate counsel provided

ineffective assistance by allowing him to complain for the first time on direct appeal about

the improper stacking order in his case. Should he not prevail on that claim in the court of

appeals, or should he raise other complaints on appeal that are not resolved to his

satisfaction, he will still be able to raise them by a petition for discretionary review. T EX. R.

A PP. P. 68.1 (providing that, “[o]n petition by any party, the Court of Criminal Appeals may

review a court of appeals’ decision in a criminal case”).

       The Court’s opinion today fails to afford applicant the full relief to which he has

shown himself justly entitled. Applicant is entitled to an opportunity to file a petition for

discretionary review. But that is not all. He is also entitled to a new direct appeal, during

which he can complain about the stacking order in his case, and through which he can

actually have that issue timely and appropriately addressed.

       There is little doubt that, even if applicant complains about the stacking order in a new

petition for discretionary review, he will not get relief for that claim in that proceeding. Who

knows whether the pro se Applicant in this case will continue to pursue that claim if his

petition for discretionary review is refused? He might. Or he might lose heart and give up

hope. This Court’s decision today affords only part of the relief to which Applicant is

entitled, and because it only affords relief that is unlikely to result in a timely review of the

trial court’s stacking order in his case, he will simply be required to file another post-
                                                                                GREEN — 8

conviction application for writ of habeas corpus at some future date if he wants to obtain the

relief to which he is demonstrably entitled. Because I fail to see the point in that, I

respectfully dissent.

FILED:        April 1, 2015
PUBLISH
