Ex Parte Barryon TOWNSEND
No. 74,764
Court of Criminal Appeals of Texas
June 16, 2004
137 S.W.3d 79
Thе Court of Appeals has also read too much into our past pronouncements regarding impeachment relating to a “material detail” of identification. By “material,” we have simply meant that the detail must be relevant to the reliability of the identification. In minimizing the impact of the weight discrepancy and in pointing to the strength of the State‘s other evidence, the Court of Appeals has confused the relevance of the evidence with its strength. That the impeachment was not partiсularly damaging or effective in light of all the evidence presented is not the question. The question is whether impeachment occurred that raised the issue of identity. If so,
We reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.
JOHNSON, J., concurred in the result.
suggested that the photo line-up was tainted. We need not, at this juncture, determine whether any of these additional quеstions also raised the issue of identity.
PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.
This is a post-conviction application for a writ of habeas corpus before this Court pursuant to
In 1990, the applicant pleaded guilty to possessiоn of cocaine,1 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 hаd violated the conditions of his probation. On February 14, 1992, the applicant was found guilty of murder2 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.
The applicant seeks rеlief; 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 clаim by failing to raise the issue on appeal.
We have said that
Barryon Townsend, pro se.
Joe C. Lockhart, Asst. DA, Corpus Christi, Matthew Paul, State‘s Atty., Austin, for State.
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.5 We held that the execution of the sentence for both offenses commenced when the defendant was sent to Boot Camp.6 Barley had already begun serving time in both concurrent sentences. By later stacking the sentences, the trial court had interrupted one of the sеntences to have Barley begin serving another. Consequently, cumulating the sentences in Barley violated his constitutional protection against being punished twice for the same offense.7
Under Barley, a trial court is without authority to stack a prior sentence that an aрplicant 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 applicаtion for a writ of habeas corpus.
“The Great Writ should not be used in matters that should have been raised on appeal.”8 Even a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal.9 This is bеcause the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.10
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.
We reaffirm today that when a defendant has an adequate remedy at law, the merits of his clаim may not be reviewed on an application for a writ of habeas corpus.
We should not overrule precedent lightly, but Barley itself was in conflict with well еstablished 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.”11 Those interests have much less force, however, when the precedent itself fails to produce consistency.12 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 decisiоn.
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.
Relief is denied.
HOLCOMB, J., concurs in the judgment.
MEYERS, J., filed a dissenting opinion, in which JOHNSON, J., joined.
MEYERS, J., dissenting, joined by JOHNSON, J.
I disagree with the majority that thе 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 thе 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 оf 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, 101 S.Ct. 1866, 68 L.Ed.2d 359 (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 apрlication. 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 waivеd any right he may have had to complain in this proceeding about an Estelle v. Smith violation at his 1981 trial.
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
The majority‘s holding will require an appeal in all cases in order for applicants to get habeas relief to which they are entitled.1 This seems unreasonablе 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 аn 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
I feel that instead of concluding that applicant‘s claim was forfeited, we should consider the merits and follow our decision in Ex parte Barley, 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 sentеnce before having the execution of the sentence suspended.”
Because I disagree with the majority‘s decisions to overrule Barley and deny relief in this case, I respectfully dissent.