









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 74,764


EX PARTE BARRYON TOWNSEND, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM NUECES COUNTY



 Meyers, J., filed a dissenting opinion.


DISSENTING OPINION


	I disagree with the majority that the applicant forfeited his constitutional claim by
failing to raise the issue on direct appeal and I feel that the applicant is entitled to relief.  	The majority relies on Ex Parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996), and
holds that the applicant forfeited his claim by failing to raise the issue on appeal.  However,
Gardner was a plurality opinion which involved use or abuse of the writ to delay execution,
a totally different use of the writ than the one before us today.  The habeas relief sought in
Gardner relates to the penalty phase and the sentence of death.  The applicant in that case
alleged that his 5th Amendment rights were violated because he was not informed that
statements he made during a psychiatric evaluation could be used against him in the
punishment phase of his trial to determine whether he would be sentenced to death. 
Although the case upon which he was relying, Estelle v. Smith, 451 U.S. 454 (1981), was
decided the same year as his trial,  
	he waited nine years after Estelle v. Smith was decided before first asserting
an Estelle v. Smith claim in his second writ application in June 1990. He made
no attempt to raise the claim while his direct appeal was pending in this Court
even though Estelle had been decided for six years when this Court finally
disposed of applicant's direct appeal. Applicant also failed to raise the claim in
April 1989 when he filed his first writ application. And, after this Court
disposed of applicant's second writ application in March 1992, applicant
waited over two years to reassert the claim in this writ application.

Under these circumstances, we hold applicant waived any right he may have
had to complain in this proceeding about an Estelle v. Smith violation at his
1981 trial.  

Ex Parte Gardner, 959 S.W.2d at 191.  In contrast, here the sentence that is the issue with
the stacking order is the one for possession of cocaine.  This is the first writ filed in this
case and there was no appeal from this conviction, thus the situation in Gardner is
distinguishable.  Townsend is not using the writ in an attempt to delay his sentence, rather he
is simply asking that the improper cumulation order be deleted so that he is not subject to
multiple punishments for the same offense.  Because this is not a situation that is in any way
similar to Gardner, applicant is entitled to raise this issue for the first time in an
application for a writ of habeas corpus.  
	The majority's holding will require an appeal in all cases in order for applicants to get
habeas relief to which they are entitled. (1)  This seems unreasonable considering the lengthy
process required for an appeal compared to the more expedited and efficient procedure for
habeas corpus relief.  Requirements for an appeal include: appointment of an attorney,
notice of appeal, trial court's certification of the defendant's right to appeal, the reporter's
record and the clerk's record (which, under Texas Rules of Appellate Procedure Rule 34.5
must include: the indictment or information, any special plea or defense motion that was
presented to the court and overruled, any written waiver, any written stipulation, and in cases
in which a plea of guilty or nolo contendere has been entered, any documents executed for
the plea; the court's docket sheet; the court's charge and the jury's verdict, or the court's
findings of fact and conclusions of law; the court's judgment or other order that is being
appealed; any request for findings of fact and conclusions of law, any post-judgment motion,
and the court's order on the motion; the notice of appeal; any formal bill of exception; any
request for a reporter's record, including any statement of points or issues under Rule 34.6
(c); any request for preparation of the clerk's record; and any filing that a party designates to
have included in the record.)  	The legislature provided both the writ of habeas corpus
and direct appeal as avenues for relief.  This Court should not usurp the power of the
legislature by saying that you can only use one remedy after you have exhausted the other. 
Additionally, I find it ironic that the majority would rule this way when this Court
consistently dismisses ineffective assistance of counsel claims on direct appeal by stating
that such issues are better addressed by a writ of habeas corpus.
	I feel that instead of concluding that applicant's claim was forfeited, we should
consider the merits and follow our decision in Barley v. State, 842 S.W.2d 694, 695 (Tex.
Crim. App. 1992), stating that "a cumulation order may not be entered once the defendant
has begun to serve his sentence because such would violate the constitutional protection
against being twice punished for the same offense. . . .newly imposed sentences may not be
cumulated because the defendant has already served a portion of his sentence before having
the execution of the sentence suspended." 
	Because I disagree with the majority's decisions to overrule Barley and deny relief in
this case, I respectfully dissent. 

Filed: June 16, 2004
Publish






1.  Exclusive of a change in the law or a change in the facts of a case due to recantation or newly
discovered exculpatory evidence giving rise to a claim of actual innocence, I cannot think of any
situation where an applicant could apply for a writ of habeas corpus without first raising the issue on
appeal.  Therefore, this court should no longer entertain writs which raise issues other than these.

