Ex parte Carter
2017 Tex. Crim. App. LEXIS 564
Tex. Crim. App.2017Background
- Roger Carter pleaded guilty (no plea bargain) to burglary of a habitation and two counts of credit-card abuse in two indictments, admitting enhancement allegations; trial court found enhancements true and sentenced him to 50 years for burglary and 5 years for each credit-card offense.
- The trial court ordered the two 5-year credit-card sentences to run concurrently with each other but to begin only after the 50-year burglary sentence (i.e., consecutive to the burglary).
- Carter appealed unsuccessfully on other grounds; five years after the court-of-appeals mandate he filed habeas applications arguing the cumulation (stacking) order was improper under Tex. Penal Code § 3.03(a).
- The habeas court found Carter’s cumulation claim was record-based and could have been raised on direct appeal, recommending denial as not cognizable on habeas.
- This Court (plurality) overruled LaPorte‘s statement that improper cumulation orders render sentences void, held the error is in the cumulation order (not the underlying sentences), and concluded such record-based statutory claims are not cognizable on habeas when they could have been raised on direct appeal.
- The Court denied Carter’s habeas applications; concurrences agreed that the claim was waivable and forfeited if not raised on appeal; dissents argued the cumulation here caused unlawful detention (due-process violation) and urged relief or remand for ineffective-assistance development.
Issues
| Issue | Carter's Argument | State's Argument | Held |
|---|---|---|---|
| Whether an improper cumulation (stacking) order under Tex. Penal Code § 3.03(a) is cognizable in an initial post-conviction habeas application | Cumulation violated § 3.03(a) (offenses arose from same criminal episode) so the consecutive order was illegal and cognizable on habeas | The claim is a bare statutory/record-based error that Carter could have raised on direct appeal and thus is not cognizable on habeas | Claim not cognizable on habeas because it is a record-based statutory claim that could have been raised on direct appeal; habeas denied |
| Whether LaPorte’s statement that improper cumulation renders sentences "void" remains good law | LaPorte allows raising cumulation error at any time because sentence is void | LaPorte conflated the cumulation order with the sentence; cumulation error is remediable on appeal and not a void sentence | Overruled LaPorte’s holding that cumulation makes sentences void; cumulation error is not per se a void sentence |
| Whether a cumulation claim is a Marin category-one (nonwaivable) systemic error or a waivable Marin category-two right | Carter: § 3.03 creates a protected right to concurrent sentences that should be enforceable | State/Court: § 3.03 rights are waiver-only (Marin category two); thus defendant must raise them or they are forfeited on habeas | Court held § 3.03 confers a Marin category-two waiver-only right; because Carter could have raised it on appeal and did not, he forfeited the claim for habeas purposes |
| Whether Carter’s ineffective-assistance claims include counsel’s failure to challenge cumulation and require remand for evidentiary development | Carter (via pro se filings) argued ineffective assistance on many grounds and later suggested counsel failed to challenge stacking | Habeas court found no allegation that counsel was ineffective for failing to object to cumulation; Court found no arguable ineffective-assistance claim specific to stacking and denied relief | Court declined to remand; found ineffective-assistance claims without merit and no adequately pleaded claim that counsel failed to challenge cumulation on trial or appeal |
Key Cases Cited
- LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992) (earlier Court holding that improper cumulation rendered sentences void)
- Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997) (treating § 3.03 rights as Marin waiver-only rights)
- Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) (habeas claim forfeited if it could have been raised on direct appeal)
- Ex parte McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002) (statutory/mandatory-procedure errors are not necessarily cognizable on habeas)
- Ex parte San Miguel, 973 S.W.2d 310 (Tex. Crim. App. 1998) (cumulation order is "void" for habeas only if so deficient the prison system cannot implement it)
- Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) (unauthorized sentences outside statutory range may be challenged at any time on habeas)
- Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) (remedies for errors in judgments include reformation or judgment nunc pro tunc)