ALEXANDER, KELVIN GRANT Jr., WR-83,764-01

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); the trial court ordered the sentences to run consecutively.
Both offenses were alleged to have occurred on January 15, 2007 and were prosecuted in a single trial; the State presented a "crime spree" theory tying the offenses together and argued the robbery funded the drug purchase.
Trial counsel did not object when the State moved to cumulate sentences under art. 42.08 and the court entered a written cumulation order; Applicant did not file a motion for new trial but appealed; direct appeal affirmed and PDR was denied.
Applicant filed an art. 11.07 habeas application arguing (1) the cumulation order was void because the offenses arose out of the same criminal episode (Tex. Pen. Code §3.03(a)); (2) there was no evidence to support cumulation; (3) trial counsel was ineffective for failing to object to cumulation; and (4) appellate counsel was ineffective for failing to raise the cumulation claim on appeal.
The trial court recommended denial of relief; the Court of Criminal Appeals ordered supplemental findings as to whether trial counsel was deficient and whether prejudice resulted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Legality of sentence cumulation	Cumulation violated Tex. Penal Code §3.03(a) because both offenses arose from the same criminal episode and were tried in one action; therefore sentences must run concurrently.	State relied on art. 42.08 authority to cumulate; (implicit) trial court exercised discretion by granting State's motion.	Trial court entered a cumulation order; Applicant asserts it is void and seeks reformation. Trial court recommended denial; CCA ordered further findings on counsel performance.
Sufficiency of evidence for cumulation	No evidence contradicted the State's own theory that the offenses were part of the same-day crime spree; therefore no evidence supported cumulation.	(Implicit) some evidence may support cumulation (as found in other cases like Knight).	Applicant argues there is no evidence to support cumulation and requests vacatur; matter reserved for CCA review.
Ineffective assistance of trial counsel	Counsel (Eduardo Cortes) failed to know/apply §3.03(a) and failed to object to the obviously defective cumulation order; this failure was not strategic and caused prejudice (additional 5 years).	(Implicit defense) counsel might have had strategic reasons; burden on Applicant to prove both prongs of Strickland.	Trial court recommended denial; CCA ordered additional findings specifically about counsel deficiency and prejudice.
Ineffective assistance of appellate counsel	Appellate counsel failed to raise the cumulation claim on direct appeal and raised weak issues instead, causing prejudice.	(Implicit defense) appellate counsel's choices may be strategic; ineffective-assistance claims are typically raised on habeas.	Applicant preserved claim for habeas; CCA may consider appellate ineffectiveness in its review.

Key Cases Cited

Ex parte Cvengros, 384 S.W.2d 881 (Tex. Cr. App. 1964) (Court’s broad habeas authority)
LaPorte v. State, 840 S.W.2d 412 (Tex. Cr. App. 1992) (§3.03(a) limits art. 42.08; improper cumulation is void)
Ex parte Townsend, 137 S.W.3d 79 (Tex. Cr. App. 2004) (procedural forfeiture issues when claim not raised on direct appeal)
Ex parte Knight, 401 S.W.3d 60 (Tex. Cr. App. 2013) (analysis of whether evidence supports cumulation order)
Morris v. State, 301 S.W.3d 281 (Tex. Cr. App. 2009) (appropriate remedy for improper cumulation is deletion/reformation of judgment)
Ex parte Perales, 215 S.W.3d 418 (Tex. Cr. App. 2007) (no-evidence claims cognizable on habeas; review for any evidence)
Ex parte Rich, 194 S.W.3d 508 (Tex. Cr. App. 2006) (void-sentence defects can be raised at any time)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (right to effective assistance on first appeal as of right)