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Court of Criminal Appeals of Texas.

EX PARTE James REED III, Applicant

NOS. WR-93,865-01, 93,865-02, & 93,865-03

Decided: September 21, 2022


Applicant was convicted of three offenses of second degree robbery and sentenced to twenty years’ imprisonment in each case. The Thirteenth Court of Appeals affirmed his convictions. Reed v. State, Nos. 13-09-00388-CR, 13-09-00389-CR, 13-09-00390-CR, 2010 WL 3279528 (Tex. App.—Corpus Christi-Edinburg Aug. 19, 2010) (mem. op., not designated for publication). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that his trial (adjudication) and appellate counsel were ineffective because trial counsel failed to object to the trial court's improper cumulation order and appellate counsel failed to raise the issue on direct appeal. Based on the record, the trial court has determined, and the State agrees, that both counsels’ performances were deficient and that Applicant was prejudiced.

Relief is granted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The stacking orders in the judgments in cause number 95027, 95129, and 95130 in the 252nd District Court of Jefferson County are deleted.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles.

Some context is necessary for this case. Applicant was ultimately convicted in the same proceeding for three different robberies each of which occurred on the same day. However, the trial court ordered that the sentences—twenty years for each—run consecutively rather than concurrently. Consequently, Applicant's aggregate sentence is sixty years in prison rather than twenty.1 Everyone agrees that this cumulation order was illegal, but trial counsel did not object at the time. Appellate counsel filed an Anders brief rather than raise the illegal cumulation order on appeal. The court of appeals did not catch it.

Now, Applicant argues that both trial counsel and appellate counsel were ineffective, and he is entitled to have the illegal cumulation order deleted. The State agrees. So does the habeas court. The proper remedy for an illegal cumulation order is to simply delete it.2 Given this context, I agree with this Court's decision to resolve the case by deleting the cumulation order and giving the parties what they want.

And no, this resolution of the case does not undermine Ex parte Carter. Carter only dealt with the question of whether a bare challenge to a cumulation order is cognizable on a writ, not whether a claim of ineffective assistance of counsel based upon the failure to object to an illegal cumulation order is cognizable.3 The plurality specifically noted that the applicant in that case had not sought habeas corpus relief for counsel's failure to object to the cumulation order.4 And two of the judges whose votes were necessary to establish a majority for the denial of relief specifically noted that a claim of ineffective assistance based upon the failure to challenge an illegal cumulation order would be cognizable.5 Carter also did not address what the appropriate remedy should be for such a claim.6 The Court rightly avoids expanding the scope of a non-binding, plurality opinion to limit consideration of certain types of ineffective assistance claims particularly considering that no one has asked us to.

Moreover, this case highlights what a waste of judicial resources it has been to continuously tinker with our cognizability jurisprudence. Our holding that a bare challenge to an illegal cumulation order cannot be raised for the first time in a writ application only funneled such claims through the nozzle of ineffective assistance of counsel.7 It did not clarify our already complicated habeas corpus jurisprudence, and it is hardly more efficient to keep forcing advocates to reframe their legitimate claims. Shifting the remedy in this case from deletion of the illegal cumulation order to an out of time appeal turns the process into a shell game.

The writ of habeas corpus has always been about removing illegal restraint.8 Deleting the illegal cumulation order in this case removes the illegal restraint. Granting an out of time appeal just forces this Court and a court of appeals to waste judicial resources on yet another appeal to get to the same relief.9 The parties and the habeas court all agree on a more proper and efficient solution. We should defer to them.

With these thoughts, I join this Court's order granting relief and deleting the illegal cumulation order.

Today the Court grants post-conviction habeas corpus relief in three robbery convictions. Tex. Code Crim. Proc. art. 11.07. On March 29, 2007, Applicant pled guilty to all three robberies that had all occurred on May 14, 2005. He was placed on deferred adjudication community supervision for eight years. The State later filed a motion to proceed to adjudication, which the trial court did on June 10, 2009, upon Applicant's plea of true to two of the violations of community supervision alleged in the State's motion to adjudicate. The trial court sentenced Applicant to a twenty-year sentence in each robbery case—the maximum prison time for these second-degree felony offenses. Tex. Penal Code §§ 29.02(b), 12.33(a). The trial court then ordered that the three twenty-year sentences be stacked, for a total of sixty years to serve in the state penitentiary.

Because the three robberies constituted “repeated commission of the same ․ offense[,]” and because they were prosecuted in “a single criminal action,” Applicant argues that the three sentences should have been made to run concurrently. Tex. Penal Code §§ 3.01(2) & 3.03(a). In his post-conviction application for writ of habeas corpus, Applicant therefore contends that both his trial counsel and appellate counsel were constitutionally deficient in failing to raise this error, and that he was prejudiced by the cumulation orders. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I do not disagree with the Court's conclusion that appellate counsel, at least, has proved constitutionally ineffective, since he filed an affidavit essentially admitting that his representation was deficient in failing to raise the cumulation issue on appeal.1 But I do take issue with the Court's choice of remedy.

The Court has held that, while a defendant may indeed challenge an invalid cumulation order for the first time on direct appeal, he may not do so for the first time in post-conviction habeas corpus proceedings. Ex parte Carter, 521 S.W.3d 344, 348–49 (Tex. Crim. App. 2017); id. at 355 (Newell, J., concurring). A post-conviction habeas applicant cannot hope to have cumulation provisions in the judgment of conviction deleted if he fails to complain about them until collateral attack. Id. In fact, that is what made Applicant's appellate counsel constitutionally ineffective in this case: he did not challenge the cumulation provisions in the judgment for the first time on appeal when he could have, even though trial counsel failed to raise the issue. And yet, the remedy that the Court fashions today is identical to that which it would have granted had Applicant directly challenged the cumulation provisions on appeal; to simply delete those provisions. That seems anomalous to me: to grant the very same relief that we would grant were the issue of cumulation directly cognizable in post-conviction habeas corpus proceedings. So much for our holding in Carter!

Rather than delete the cumulation provisions from the trial court's judgment, I would grant Applicant an out-of-time appeal in which he can challenge them in the regular course of appellate proceedings, since the ineffectiveness of his appellate counsel deprived him of that opportunity before.2 See Ex parte Daigle, 848 S.W.2d 691, 692 (Tex. Crim. App. 1993) (holding that “[t]he proper remedy” for a claim of ineffectiveness of appellate counsel “is to return the Applicant to the point at which he can give notice of appeal”). It would then be within the authority of the court of appeals to delete the cumulation provisions in the judgments, if appropriate. See Tex. R. App. P. 43.2(b) (“The court of appeals may ․ modify the trial court's judgment and affirm it as modified[.]”); Carter, 521 S.W.3d at 347 (“An improper cumulation order may be remedied by reformation on appeal[.]”).3 Because the Court does not follow this more appropriate remedial path, I respectfully dissent.


1.   But see Tex. Penal Code § 3.03 (“When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense ․ shall be pronounced ․ the sentences shall run concurrently ․”). Applicant and the State agree that Applicant's convictions were part of the same criminal episode and arose from a single criminal action. The habeas court likewise agreed that, pursuant to § 3.03, Applicant's sentences should have run concurrently.

2.   Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996).

3.   Ex parte Carter, 521 S.W.3d 344, 346 (Tex. Crim. App. 2017).

4.   Id. at 350.

5.   Id. at 354 (Newell, J. concurring) (“Given that Applicant is not challenging the improper cumulation order as a subset of his ineffective assistance claim, I agree with the Court's decision to deny relief on that ground as well. Otherwise, I would have granted relief on Applicant's ineffective assistance claim.”).

6.   Id.

7.   See id.

8.   Tex. Code Crim. Proc., art. 11.01; Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002) (“The purpose of a writ of habeas corpus is to obtain a speedy and effective adjudication of a person's right to liberation from illegal restraint.”) (citing Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (“[T]he very purpose of the writ of habeas corpus [is] to safeguard a person's freedom from detention in violation of constitutional guarantees.”)).

9.   Granting an out-of-time appeal also recognizes the merit of the underlying legal argument that Applicant was harmed by counsel's failure to challenge the improper cumulation order. See Robbins, 914 S.W.2d at 584.

1.   Trial counsel filed an affidavit too, but he pled the passage of time and lack of an independent memory of the cases, and he did not confess to any deficiency in his performance.

2.   On direct appeal, appellate counsel filed an Anders brief, having failed to perceive any arguable error apparent from the appellate record. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After its independent review, the court of appeals also failed to perceive any error in the cumulation provisions of the trial court's judgment, granting appellate counsel's motion to withdraw, and it affirmed the convictions. Reed v. State, Nos. 13-09-00388-CR thru 13-09-00390-CR, 2010 WL 3279528 (Tex. App.—Corpus Christi Aug. 19, 2010) (mem. op., not designated for publication). An out-of-time appeal would allow the lower court to take another look.

3.   Insofar as I can tell, Applicant's three twenty-year sentences were not the product of a plea bargain at the adjudication stage of the proceedings, and it is hard to imagine what possible advantage counsel at that stage could have obtained for his client by bargaining for maximum sentences and waiving Applicant's right that they be made to run concurrently. There is no suggestion in the record that Applicant committed any other offense the prosecution for which the State could have forsaken as an incentive for such a bargain. Thus, it seems reasonably clear that Applicant will eventually obtain his relief in a renewed direct appeal. See Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (recognizing that ineffective assistance of trial counsel may be established on direct appeal if trial counsel's performance was “so outrageous that no competent attorney would have engaged in it”) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).It might be argued that we should simply cut to the chase and delete the cumulation provisions in the name of judicial economy. But not every case of ineffective assistance of counsel for failure to raise an invalid cumulation order will prove as cut and dried as this one seems to be. This Court should not fall into the habit of modifying judgments of conviction to delete such orders as a matter of course in post-conviction habeas corpus proceedings.In fact, Applicant's claim of ineffective assistance of trial counsel may also be so cut and dried—just on the appellate record alone—that that claim could have been raised on direct appeal. But claims that could have been raised on direct appeal, but were not, are not ordinarily subject to review on collateral attack. See Carter, 521 S.W.3d at 348 (“If an applicant could have appealed the issue he now asserts on habeas, the merits of his claim should not be reviewed.”). Thus, it may be that ineffective appellate counsel is the only issue legitimately before the Court at this time—in which case the appropriate remedy would definitely be as I have described it in the text: an out-of-time appeal.

Per curiam.

Newell, J. filed a concurring opinion in which Hervey, Keel, and Walker, JJ., joined. Yeary, J. filed a dissenting opinion in which Keller, P.J. and Slaughter, J., joined.

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