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Texas Court of Criminal Appeals Severely Curtails Habeas Corpus

The Texas Court of Criminal Appeals has held that the state post-
conviction petition for a writ of habeas corpus under Article 11.07, Texas
Code of Criminal Procedure, is limited to matters that could not have been
raised on direct appeal.

Barryon Townsend and Sam Eddie Nelson are Texas state prisoners who filed
post-conviction petitions for a writ of habeas corpus under Article 11.07.
Townsend pleaded guilty to possession of cocaine in a plea bargain that
included boot camp followed by ten years on probation. He was later
convicted of murder and sentenced to sixty years in prison. His probation
was then revoked and he was sentenced to ten years in prison stacked on
the sixty-year sentence. He did not challenge the validity of the stacking
order on direct appeal; instead, Townsend challenged the validity of the
stacking order via state habeas corpus.

Nelson was convicted of unlawfully carrying a handgun on premises licensed
for the sale and service of alcoholic beverages. He was sentenced to five
years probation and the trial judge entered a deadly weapon finding. He
did not pursue a direct appeal. Later, his probation was revoked for,
among other violations, five new felonies. The trial court sentenced him
to five years in prison and included an affirmative finding of a deadly
weapon on that sentencing order. Again, he did not pursue a direct appeal.
The Court of Criminal Appeals held that habeas corpus cannot be used as a
substitute for appeal. Overruling in part Ex parte Barley, 842 S.W.2d 694
(Tex.Crim.App. 1992) and Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App.
1992), the Court held that an applicant for a post-conviction writ of
habeas corpus cannot raise a claim for the first time on post-conviction
habeas corpus if the claim could have been raised on direct appeal.
Prisoners who fail to raise claims on appeal that could have been raised
on appeal waive those claims. Because earlier opinions of the Court of
Criminal Appeals had held that claims raised on appeal cannot be again
raised on habeas corpus, these opinions have the effect of baring from
state habeas corpus review any claim that could be raised on appeal
regardless of whether they are actually raised on direct appeal or not.
Relief was denied in both cases. See: Ex parte Townsend, 137 S.W.3d 79
(Tex.Crim.App. 2004) and Ex parte Nelson, 137 S.W.3d 666 (Tex.Crim.App.

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Related legal case

Ex parte Townsend

Ex Parte Townsend, 137 S.W.3d 79 (Tex.Crim.App. 06/16/2004)


[2] No. 74,764

[3] 137 S.W.3d 79, 2004.TX

[4] June 16, 2004



[7] Price, J., delivered the opinion of the Court, in which Keller, P.J., and Womack, Keasler, Hervey, and Cochran, JJ., joined. Holcomb, J., concurs in the judgment. Meyers, J., filed a dissenting opinion, in which Johnson, J., joined.


[9] 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.

[10] In 1990, the applicant pleaded guilty to possession of cocaine,*fn1 was convicted, and was sentenced to 10 years imprisonment. He was sent to the Texas Department of Criminal Justice's Special Alternative Incarceration Program (Boot Camp). By May 6, 1991, the applicant had successfully completed Boot Camp, the trial court suspended his sentence, and placed the applicant on probation for the remainder of his term. On July 19, 1991, the State filed a motion to revoke probation alleging that the applicant had violated the conditions of his probation. On February 14, 1992, the applicant was found guilty of murder*fn2 and was sentenced to sixty years' imprisonment. On the same day, the trial court revoked the applicant's probation and imposed a sentence of ten years' imprisonment. The trial court included a cumulation order in the judgment revoking probation whereby the ten-year sentence for possession of cocaine was stacked on the sixty-year murder sentence.

[11] 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.

[12] We have said that Article 42.08 of the Texas Code of Criminal Procedure gives the trial court the discretion to cumulate a sentence with prior outstanding sentences if the later sentence is imposed for the first time following the revocation of probation.*fn3 However, if the applicant has already served a portion of his sentence before the sentence is suspended or probated, then a cumulation order may not be entered to stack the probated sentence on a subsequent sentence because such would violate the constitutional protection against being twice punished for the same offense.*fn4

[13] 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.*fn5 We held that the execution of the sentence for both offenses commenced when the defendant was sent to Boot Camp.*fn6 Barley had already begun serving time in both concurrent sentences. By later stacking the sentences, the trial court had interrupted one of the sentences to have Barley begin serving another. Consequently, cumulating the sentences in Barley violated his constitutional protection against being punished twice for the same offense.*fn7

[14] 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.

[15] "The Great Writ should not be used in matters that should have been raised on appeal."*fn8 Even a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal.*fn9 This is because the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.*fn10

[16] 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.

[17] We reaffirm today that when a defendant has an adequate remedy at law, the merits of his claim may not be reviewed on an application for a writ of habeas corpus. To the extent that Barley holds that an improper stacking order claim may be brought for the first time in an application for a writ of habeas corpus, it is overruled.

[18] 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."*fn11 Those interests have much less force, however, when the precedent itself fails to produce consistency.*fn12 When older precedent conflicts with a newer decision that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the more soundly reasoned decision.

[19] 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.

[20] Relief is denied.

[21] Publish.


[23] 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.

[24] 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.

[25] The majority's holding will require an appeal in all cases in order for applicants to get habeas relief to which they are entitled.*fn13 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.

[26] 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."

[27] Because I disagree with the majority's decisions to overrule Barley and deny relief in this case, I respectfully dissent.

[28] Filed: June 16, 2004

[29] Publish

[30] A proceeding defective for irregularity and one void for illegality may be revised upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus.' An irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Hurd on Habeas Corpus, 333, citing Tidd's Pr. 434, and 3 Chitty's Genl. Pr. 509. Illegality is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a complete defect in the proceedings. Hurd, 333; Tidd's Pr. 435. Habeas corpus is reserved for consideration of certain asserted errors that are extremely radical in character, viz: "illegalities" contrary to basic principles of law, including those of constitutional dimension, rendering a proceeding void. Of course, they may also be presented on appeal. However, lesser claimed errors - "irregularities" implicating no more than mere rules of procedure -- are not cognizable on habeas corpus and, therefore, may be redressed only on appeal. The latter and other minor defects must be addressed on appeal or perhaps in some other available forum, such as an administrative agency or one that possesses clemency powers.


Opinion Footnotes


[31] *fn1 . Tex. Health & Safety Code § 481.115.

[32] *fn2 . Tex. Pen. Code § 19.02.

[33] *fn3 . 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)).

[34] *fn4 . 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)).

[35] *fn5 . See ibid. (citing Reynolds, 462 S.W.2d 605; O'Hara v. State, 626 S.W.2d 32 (Tex. Crim. App. 1981)).

[36] *fn6 . See ibid.

[37] *fn7 . Ibid. (citing Reynolds, 462 S.W.2d 605).

[38] *fn8 . Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).

[39] *fn9 . 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 part Grove, 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).

[40] *fn10 . Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).

[41] *fn11 . Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997).

[42] *fn12 . Ibid.

[43] *fn13 . 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.