Ex Parte Guerrero , 1975 Tex. Crim. App. LEXIS 916 ( 1975 )

OPINION

ROBERTS, Judge.

This is a habeas corpus hearing in the 197th District Court under Art. 11.07, Vernon’s Ann.C.C.P., in which the relief requested was recommended to be denied.

Petitioner was convicted of escape from jail on April 24, 1974; the jury assessed punishment at five years’ imprisonment. On the same date, the petitioner waived time for sentencing and was sentenced to not less than two nor more than five years in that cause. Twenty-two days later the petitioner pleaded guilty to a charge of burglary. The State waived the habitual criminal allegation and petitioner was assessed punishment at 12 years’ confinement. On the same date and in the same proceeding, upon the petitioner’s request, he was re-sentenced on the escape conviction so that the five-year sentence was ordered to run consecutively to the 12-year sentence imposed in the burglary conviction. The record reflects the following:

“Mr. Garza [Attorney for Petitioner]: Did the Court Reporter get the statement by me and the Defendant — it was at the Defendant’s request that one be stacked on top of the other. I would like the record to reflect that one reason for the resentencing was that the Defendant has requested that the five year sentence be stacked upon the 12 year, rather than the 12 year on the five year.

“The Court: That is correct, and I granted it.”

Complaint is made to the cumulation order of the trial judge wherein the five-year sentence was “stacked” on the 12 year sentence 22 days after the five-year sentence had begun to run. Reliance is had on Ex Parte Voelkel, 517 S.W.2d 291 (Tex.Cr.App.1975); Blackwell v. State, 510 S.W.2d 952 (Tex.Cr.App.1974); Ex Parte Brown, 477 S.W.2d 552 (Tex.Cr.App.1972); and Ex Parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970), which hold that an order of cumulation entered after sentence has been imposed and petitioner has suffered punishment thereunder is null and void and of no legal effect. While this is a correct statement of the law, the circumstances in the instant case do not require that the relief be granted.

It is apparent from the record that the trial judge was about to cumulate the 12-year sentence on the five-year sentence which would have been proper and valid. See Art. 42.08, V.A.C.C.P. It was only at the petitioner’s request that the trial judge had the five-year sentence run consecutively to the 12-year sentence. Clearly, this was error. See Ex Parte Voelkel, supra. However, we cannot say that this error was such as to grant the relief requested. From the facts here presented, we find the error to have been encouraged and invited by the petitioner himself. It is well-established in our jurisprudence that “an accused cannot invite error and then complain thereof.” Holmes v. State, 140 Tex.Cr.R. 619, 146 S.W.2d 400 (1941); accord, Moxie v. State, 54 Tex.Cr.R. 529, 114 S.W. 375 (1908). The case at bar is similar to the situation presented in Ex Parte Moneyhun, 161 Tex.Cr.R. 19, 274 S.W.2d 546 (1955). There the defendant was sentenced to 120 days in jail and after serving 41 days he requested that he be released upon the condition that he not return to Taylor County to which the county judge agreed and ordered his release. Subsequently, after returning to Taylor County, the petitioner was arrested and placed in jail to serve the remainder of his unexpired sentence. In a collateral attack petitioner maintained that the county judge’s order was void and of no legal effect. This Court held:

“When appellant’s attorney requested his release he became the moving factor and cannot now take advantage of a void order on part of the County Judge.” (Emphasis added) See also Ex Parte Massie, 161 Tex.Cr.R. 568, 278 S.W.2d 851 (1955); Ex Parte Williams, 164 Tex.Cr.R. 568, 301 S.W.2d 84 (1957); compare McIntyre v. State, 172 Tex.Cr.R. 510, 360 S.W.2d 875 (1962) cert. denied 371 U.S. 867, 83 S.Ct. 130, 9 L.Ed.2d 104 (1962).

In the recent decision of Benson v. State, 496 S.W.2d 68 (1973), this Court refused to allow an appellant to take advantage of an invited error. In that case, as the jury returned with their verdict at the guilt stage of the trial but before it was received by the court, appellant and his attorney requested that the jury assess punishment which was granted by the trial judge. On appeal, complaint was made to the court’s granting the relief petitioner requested. There it was said:

“Appellant cannot now be heard to complain because the court granted him what he asked for.”

The aforementioned rule is dispositive of the case at bar. The petitioner was the “moving factor” in causing the trial judge to enter the order. As in Ex Parte Mo-neyhun, supra, petitioner may not now avail himself of the very error he initiated. If there was any harm, it was self-inflicted.

The writ is denied.