Alexander, Kelvin Grant, WR-83,764-02

Background

Applicant Kelvin Grant Alexander was convicted after a single jury trial of aggravated robbery (27 years) and possession of a controlled substance (5 years); sentences were ordered to run consecutively on the State’s motion.
Both offenses allegedly occurred January 15, 2007 during a single “crime spree”; possession was discovered when Alexander was booked after the aggravated robbery arrest.
Direct appeal: convictions affirmed by the Ninth Court of Appeals (unpublished); PDR denied by the Court of Criminal Appeals.
Applicant filed an art. 11.07 habeas application arguing (1) the cumulation order is void under Tex. Penal Code §3.03(a) because both offenses arose from the same criminal episode and were tried in a single action; (2) no evidence supported consecutive sentences; (3) ineffective assistance of trial counsel for failing to object to the cumulation order; and (4) ineffective assistance of appellate counsel for failing to raise the cumulation issue on appeal.
Procedural posture in this filing: the trial court recommended denial; Applicant sought habeas relief in the Court of Criminal Appeals, which ordered additional findings on whether trial counsel was deficient and prejudicial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s consecutive-sentence (cumulation) order is void under Tex. Penal Code §3.03(a) because both convictions arose from the same criminal episode tried in one action	Alexander: §3.03(a) mandates concurrent sentences when multiple offenses arise from the same criminal episode in a single trial; the offenses here were the same-episode crime spree, so cumulation is unlawful and void	State: moved for cumulation under art. 42.08(a) and obtained written cumulation order; implicitly contends cumulation was within trial court discretion or supported by record	Not finally decided on the merits in this memorandum; trial court recommended denial; CCA ordered additional findings. Applicant argues judgment should be reformed to delete the cumulation order.
Whether there was any evidence to support the consecutive-sentence order (no-evidence claim cognizable on habeas)	Alexander: prosecutor’s own theory was a single-day crime spree culminating in booking and possession; no evidence suggested separate episodes, so no evidence supports cumulation	State: argues record supported cumulation (implicitly relying on trial court’s exercise of discretion and any evidence distinguishing episodes)	Not finally resolved here; Applicant relies on Ex parte Knight and urges vacation of cumulation as unsupported by any evidence.
Whether trial counsel provided ineffective assistance by failing to object to the cumulation order	Alexander: counsel Eduardo Cortes failed to know or apply §3.03(a) and made no objection; this was not strategic and prejudiced Alexander by adding 5 years	State: would argue presumption of reasonable strategy and that record does not affirmatively demonstrate ineffectiveness	CCA ordered additional findings on whether trial counsel was deficient and whether prejudice resulted; final determination pending.
Whether appellate counsel was ineffective for failing to raise the cumulation claim on direct appeal	Alexander: appellate counsel raised weak issues and omitted the meritorious cumulation claim; under Evitts/Strickland, this was objectively unreasonable and prejudicial	State: would invoke usual deference to appellate strategy and the general rule that ineffective-assistance claims are often improper on direct appeal	Not finally decided; Applicant argues appellate omission prejudiced appeal and preserved the claim for habeas review.

Key Cases Cited

LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992) (§3.03 limits article 42.08; sentences for offenses from same criminal episode in single action should run concurrently)
Ex parte Knight, 401 S.W.3d 60 (Tex. Crim. App. 2013) (habeas review of cumulation order; Court found some evidence supporting cumulation)
Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) (forfeiture discussion where applicant failed to raise cumulation claim on direct appeal)
Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) (a defect rendering a sentence void may be raised at any time)
Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007) (no-evidence claims are cognizable on habeas; habeas review limited to any-evidence standard)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance test: deficient performance and prejudice)
Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (right to effective assistance on first appeal as of right)
Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) (appellate court deference to trial court findings but CCA is ultimate factfinder)
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) (CCA may make contrary findings if trial court findings unsupported)