Benavides, Joe Trampas, WR-76,987-04

Background

Joe Trampas Benavides pleaded guilty (Jan 26, 2000) to unlawful delivery of cocaine under a plea bargain: ten-year sentence with five years probated; no cumulation provision was included.
Probation revoked Nov 1, 2002; Benavides began serving the ten-year sentence and later received shock probation (May 16, 2003) after serving 197 days credited to that sentence.
After a subsequent stalking conviction (Mar 21, 2005), the trial court revoked shock probation (Mar 25, 2005), reimposed the ten-year sentence and—crucially—added a cumulation order making the ten-year sentence consecutive to the newer stalking sentence.
Benavides contends the cumulation order is void/illegal because (a) it was added after the original sentence had commenced and after shock probation, (b) it violates double jeopardy, (c) it breached the plea agreement, (d) it inflicted cruel and unusual punishment, and (e) trial counsel was ineffective for failing to object.
This filing is a pro se third state habeas application (and reply to the State’s response) asking the Court to delete the cumulation order, enforce the original plea bargain (concurrent ten-year term), grant release or remand for resentencing. The State has asserted procedural default under Tex. Code Crim. Proc. art. 11.07 § 4(a).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Ineffective assistance of counsel at sentencing/revocation	Benavides: counsel failed to object that the ten-year sentence had already commenced and failed to oppose unlawful cumulation; Strickland prejudice shown.	State: claim is procedurally barred (successive writ); must meet §11.07 exceptions.	Not decided in this pleading — applicant requests relief; previous state habeas was denied and Court of Criminal Appeals dismissed earlier time-credit claim.
2. Double jeopardy (addition of cumulation order)	Benavides: cumulation after sentence commenced and after shock probation lifts suspension imposed additional punishment and therefore violated Double Jeopardy.	State: treats claim as procedurally defaulted under §11.07.	Not decided here — applicant asks court to delete cumulation order; argues double jeopardy exception to procedural bar.
3. Breach of plea agreement / enforcement	Benavides: plea bargain set a capped concurrent ten-year exposure; trial court had no authority to add cumulation later; seeks specific enforcement or withdrawal.	State: argues procedural default; did not concede remedy here.	Not decided in this pleading — applicant requests specific enforcement / deletion of cumulation.
4. Cruel and unusual punishment / illegal/void sentence	Benavides: stacking the already-commenced sentence created disproportionate punishment and an illegal/void sentence subject to collateral attack at any time.	State: treats claim as procedurally barred under §11.07; denies merit in prior responses.	Not decided here — applicant frames claim as jurisdictional/void sentence exception to procedural bar and seeks relief.

Key Cases Cited

Martinez v. Ryan, 132 S. Ct. 1309 (2012) (ineffective assistance of post‑conviction counsel may excuse procedural default for trial‑ineffective‑assistance claims under limited circumstances)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance of counsel)
Coleman v. Thompson, 501 U.S. 722 (1991) (procedural default doctrine; cause and prejudice standard)
North Carolina v. Pearce, 395 U.S. 711 (1969) (double jeopardy protection against additional punishment after prior conviction/sentence)
Brown v. Ohio, 432 U.S. 161 (1977) (prohibition on multiple punishments for the same offense)
O'Hara v. State, 626 S.W.2d 32 (Tex. Crim. App. 1981) (a court may not add a cumulation order onto a sentence already imposed after the defendant has suffered punishment under that sentence)
Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000) (requirements for successive state habeas applications under art. 11.07 § 4)
Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004) (distinguishing time-credit claims from illegal confinement claims when incarceration extends past presumptive discharge)
Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998) (void judgments are nullities and may be attacked at any time)