Ex Parte Townsend , 2004 Tex. Crim. App. LEXIS 1015 ( 2004 )

OPINION

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 Texas Code of Criminal Procedure Article 11.07.

In 1990, the applicant pleaded guilty to possession 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 had 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 cu-mulation 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 relief; 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 claim by failing to raise the issue on appeal.

We have said that Article 42.08 of the Texas Code of Criminal Procedure gives the trial court the discretion to cumulate a sentence with prior outstanding sentences if the later sentence is imposed for the first time following the revocation of probation.³ However, if the applicant has already served a portion of his sentence before the sentence is suspended or probated, then a cumulation order may not be entered to stack the probated sentence on a subsequent sentence because such would violate the constitutional protection against being twice punished for the same offense.⁴

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 sentences 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 applicant 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 application 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 because 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 claim may not be reviewed on an application for a writ of habeas corpus. To the extent that Barley holds that an improper stacking order claim may be brought for the first time in an application for a writ of habeas corpus, it is overruled.

We should not overrule precedent lightly, but Barley itself was in conflict with well established 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 decision.

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.

1 . Tex. Health & Safety Code § 481.115.

2 . Tex. Pen.Code § 19.02.

3 . See Pettigrew v. State, 48 S.W.3d 769, 771 (Tex.Crim.App.2001) (citing Ex Parte March, 423 S.W.2d 916 (Tex.Crim.App.1968)).

4 . See Ex parte Barley, 842 S.W.2d 694, 695 (Tex.Crim.App.1992) (citing Ex parte Reynolds, 462 S.W.2d 605 (Tex.Crim.App.1970)).

5 . See ibid, (citing Reynolds, 462 S.W.2d 605; O'Hara v. State, 626 S.W.2d 32 (Tex.Crim.App.1981)).

6 . See ibid.

7 . Ibid, (citing Reynolds, 462 S.W.2d 605).

8 . Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim.App.1989).

9 . Ex parte Gardner, 959 S.W.2d 189, 191 (Tex.Crim.App.1996). Although Gardner was a plurality opinion, it is by no means the only case in which we have held that, if a defendant could have raised a claim on direct appeal, he may not raise the claim in habeas proceedings. In Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978), a unanimous opinion, we said, "Habeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law." See also Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994).

10 .Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994).

11 . Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim.App.1997).

12 . Ibid.