IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-16,370-02

EX PARTE WILL DONNELL SIMMONS, Applicant

ON APPLICATION FOR A WRITE OF HABEAS CORPUS CAUSE NO. W91-00848-I(A) IN CRIMINAL DISTRICT COURT NO. 2 DALLAS COUNTY M EYERS, J., filed a concurring opinion.

CONCURRING OPINION While I agree with the majority’s granting Applicant relief, I disagree with the majority’s characterization of the mandate for concurrent sentences in this situation as a right. Section 3.03(a) of the Texas Penal Code tells the trial court that when a defendant is convicted of multiple crimes arising out of the same criminal episode that are prosecuted in a single action, the sentences must run concurrently. Therefore, the court does not have the authority to stack these types of sentences. This is different than the defendant having a right which can be waived or forfeited.

In this case, the improper stacking order is based upon the court’s lack of authority, Simmons concurrence - Page 2 rather than the defendant’s assertion of a right. With the exception of the labeling of concurrent sentencing as a right, I join the majority’s opinion.

Meyers, J.

Filed: October 28, 2015 Do Not Publish