Ex Parte Townsend
Ex Parte Townsend
Opinion of the Court
OPINION
delivered the opinion of the Court,
This is a post-conviction application for a writ of habeas corpus before this Court pursuant to Texas Code of Criminal Procedure Article 11.07.
In 1990, the applicant pleaded guilty to possession of cocaine,
The applicant seeks relief; he alleges that the stacking order was improper because he had already begun his sentence by attending Boot Camp. We deny relief in this case because we conclude that the applicant forfeited his constitutional claim by failing to raise the issue on appeal.
We have said that Article 42.08 of the Texas Code of Criminal Procedure gives the trial court the discretion to cumulate a
This Court directly addressed this issue twelve years ago in Ex parte Barley. In Barley, we held that a cumulation order may not be entered, not only in cases where a defendant has begun to serve his sentence or in cases where shock probation is revoked, but also in cases where a defendant is sentenced to Boot Camp and is subsequently released on probation.
Under Barley, a trial court is without authority to stack a prior sentence that an applicant has already begun to serve in Boot Camp on the end of a subsequent sentence. However, we overrule Barley to the extent that it stands for the proposition that an applicant can raise this claim for the first time in an application for a writ of habeas corpus.
“The Great Writ should not be used in matters that should have been raised on appeal.”
There was nothing to prevent the applicant from raising this claim on direct appeal. He had an adequate remedy at law. Because the applicant did not raise the issue on direct appeal, the applicant has forfeited his claim.
We reaffirm today that when a defendant has an adequate remedy at law, the merits of his claim may not be reviewed on
We should not overrule precedent lightly, but Barley itself was in conflict with well established precedent. When conducting a reexamination of precedent, “we should take into account the interests underlying the rule of stare decisis: Often it is better to be consistent than right.”
We reaffirm our decisions holding that, when a defendant has an adequate remedy at law for his claim, he may not raise the claim in an application for a writ of habeas corpus.
Relief is denied.
. Tex. Health & Safety Code § 481.115.
. Tex. Pen.Code § 19.02.
. See Pettigrew v. State, 48 S.W.3d 769, 771 (Tex.Crim.App. 2001) (citing Ex Parte March, 423 S.W.2d 916 (Tex.Crim.App. 1968)).
. See Ex parte Barley, 842 S.W.2d 694, 695 (Tex.Crim.App. 1992) (citing Ex parte Reynolds, 462 S.W.2d 605 (Tex.Crim.App. 1970)).
. See ibid, (citing Reynolds, 462 S.W.2d 605; O'Hara v. State, 626 S.W.2d 32 (Tex.Crim.App. 1981)).
. See ibid.
. Ibid, (citing Reynolds, 462 S.W.2d 605).
. Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim.App. 1989).
. Ex parte Gardner, 959 S.W.2d 189, 191 (Tex.Crim.App. 1996). Although Gardner was a plurality opinion, it is by no means the only case in which we have held that, if a defendant could have raised a claim on direct appeal, he may not raise the claim in habeas proceedings. In Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App. 1978), a unanimous opinion, we said, "Habeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law." See also Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App. 1994).
.Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App. 1994).
. Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim.App. 1997).
. Ibid.
Dissenting Opinion
dissenting, joined by JOHNSON, J.
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 faihng 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. 454,101 S.Ct. 1866, 68 L.Ed.2d 359 (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
The majority’s holding will require an appeal in all cases in order for applicants to get habeas relief to which they are entitled.
I feel that instead of concluding that applicant’s claim was forfeited, we should consider the merits and follow our decision in Ex parte Barley, 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.
. 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.
Reference
- Full Case Name
- Ex Parte Barryon TOWNSEND
- Cited By
- 161 cases
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- Published