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Court of Criminal Appeals of Texas.


NO. WR-64,707-14

Decided: January 10, 2018


James Earl Rolling, Jr., applicant, is imprisoned in the Texas Department of Criminal Justice on an illegal sentence, and for that reason the habeas court recommends that this Court grant applicant relief. Despite the illegality of the sentence, this Court refuses to grant applicant relief because he did not raise his complaint sooner, and it dismisses his application pursuant to the statutory bar on subsequent writs.1 I respectfully disagree. Instead of dismissing this pro se habeas application as a subsequent writ, I would (1) remand this case to the habeas court, (2) order the habeas court to appoint counsel for applicant upon his request and upon a finding that he is indigent, (3) permit habeas counsel to plead facts and present arguments with respect to whether this case meets the procedural requirements for a subsequent habeas application, and (4) permit counsel to amend this application, if appropriate, to challenge the other convictions obtained against applicant when applicant pleaded guilty to this offense. Because this Court dismisses the application as subsequent, I respectfully dissent.

Applicant was charged with six felonies.2 He pleaded guilty to each charge and true to the enhancement paragraphs alleged in the indictments. The trial court sentenced him to 30 years' confinement on each charge with the sentences to run concurrently. Applicant has previously challenged his convictions in habeas applications.3 His initial applications alleged ineffective assistance of counsel. Applicant asserted that counsel told him that he would receive the maximum punishment if he did not sign the plea agreement immediately and that counsel failed to discover that applicant's prior convictions were not available as punishment enhancements. His applications were denied without written order. In the instant subsequent application, applicant challenges his conviction for attempt to take a weapon from a peace officer and alleges “illegal sentence,” “breach of plea bargain agreement,” and “flat time credit of incarceration date confined.”4 The habeas court made findings of fact and conclusions of law regarding this subsequent habeas application. The habeas court concluded that applicant is entitled to relief on his conviction for attempt to take a peace officer's weapon. The habeas court determined,

Admonishments given to Applicant at the time of the plea included a range of punishment for a term of life or any term of not more than 99 years or less than 25 years in the Institutional Division of the Texas Department of Criminal Justice. In accordance with the plea agreement, Applicant was sentenced to 30 years confinement in the Texas Department of Criminal Justice-Institutional Division.

The proper range of punishment for a State Jail felony enhanced by two prior non-State Jail felonies is not less than two nor more than 20 years confinement and a fine not to exceed $10,000.

See TEX. PENAL CODE § 12.42(a)(2) (West 2010) (“If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.”).

Ordinarily, when a defendant pleads guilty to multiple offenses in a single proceeding, if it is later determined that he is entitled to relief on one of those convictions, the entire plea package may be invalidated. See Ex parte Cox, 482 S.W.3d 112, 119 (Tex. Crim. App. 2016). Therefore, if this Court were to hold that applicant's sentence for attempting to take a weapon from a peace officer is illegal, that might eventually result in the invalidation of applicant's other convictions that were obtained that same day. Applicant was sentenced to thirty years in prison to run concurrently for those offenses and for the attempt to take a weapon from a peace officer. Applicant, therefore, might reasonably desire not to challenge the illegal sentence on his conviction for attempting to take a weapon from a peace officer because relief in that individual case could possibly invalidate the package plea agreement involving the other cases, which applicant might not consider to be beneficial to him. But applicant might also reasonably desire to challenge his illegal sentence for attempting to take a weapon from a peace officer as a possible means of invalidating all of the convictions if he believed that the package plea agreement was not beneficial to him.

There are two significant problems that give me pause with respect to either granting or denying habeas relief at this juncture. One problem is that applicant has not alleged pleadings expressly asserting the claim on which the habeas court has recommended that this Court grant relief—the illegality of applicant's sentence was raised sua sponte by the habeas court. Another problem is that applicant lacks counsel and is having to proceed pro se. If he is indigent, this is precisely the type of case that calls for appointed habeas counsel. With the proper advice of counsel, applicant could make an informed decision whether to challenge the illegal sentence in this particular case and consider the potential consequences of that challenge on the remainder of the cases involved in his package plea agreement. I, therefore, would remand this case to the habeas court for appointment of counsel so that applicant would be permitted to re-plead these claims, as appropriate, after counsel has admonished applicant about the possible consequences of his decision. Because the Court declines to do so and instead dismisses the application, I respectfully dissent.


1.   TEX. CODE CRIM. PROC. art. 11.07, § 4.

2.   The charges consisted of two cases of second-degree felony possession of a controlled substance, two cases of third-degree felony harassment of a public servant, one case of third-degree felony DWI, and one case of state-jail felony attempt to take a weapon from a peace officer. See TEX. PENAL CODE §§ 22.11, 38.14, 49.04; TEX. HEALTH & SAFETY CODE § 481.115(d).

3.   Applicant's previous applications were filed simultaneously and styled WR-64,707-05 through WR-64,707-10. Each application addressed one of the six convictions, but the claims presented were identical.

4.   Applicant has also simultaneously filed applications challenging three other convictions: his two convictions for harassment of a public servant, and one of his convictions for possession of a controlled substance.

ALCALA, J., filed a dissenting opinion in which RICHARDSON and WALKER, JJ., joined.

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