Reed, James III AKA Reed, James

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOs. WR-93,865-01, WR-93,865-02 & WR-93,865-03
EX PARTE JAMES REED III, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOs. 95027-A, 95129-A & 95130-A
IN THE 252ND DISTRICT COURT
JEFFERSON COUNTY
NEWELL, J., filed a concurring opinion in which HERVEY, KEEL
and WALKER, JJ., joined.
Some context is necessary for this case. Applicant was ultimately
convicted in the same proceeding for three different robberies each of
which occurred on the same day. However, the trial court ordered that
the sentences—twenty years for each—run consecutively rather than
concurrently. Consequently, Applicant’s aggregate sentence is sixty
Reed Concurring — 2
years in prison rather than twenty. 1 Everyone agrees that this
cumulation order was illegal, but trial counsel did not object at the time.
Appellate counsel filed an Anders brief rather than raise the illegal
cumulation order on appeal. The court of appeals did not catch it.
Now, Applicant argues that both trial counsel and appellate counsel
were ineffective, and he is entitled to have the illegal cumulation order
deleted. The State agrees. So does the habeas court. The proper
remedy for an illegal cumulation order is to simply delete it. 2 Given this
context, I agree with this Court’s decision to resolve the case by deleting
the cumulation order and giving the parties what they want.
And no, this resolution of the case does not undermine Ex parte
Carter. Carter only dealt with the question of whether a bare challenge
to a cumulation order is cognizable on a writ, not whether a claim of
ineffective assistance of counsel based upon the failure to object to an
illegal cumulation order is cognizable. 3 The plurality specifically noted
1
But see TEX. PENAL CODE § 3.03 (“When the accused is found guilty of more than one offense
arising out of the same criminal episode prosecuted in a single criminal action, a sentence for
each offense… shall be pronounced…the sentences shall run concurrently…”). Applicant and
the State agree that Applicant’s convictions were part of the same criminal episode and arose
from a single criminal action. The habeas court likewise agreed that, pursuant to § 3.03,
Applicant’s sentences should have run concurrently.
2
Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996).
3
Ex parte Carter, 521 S.W.3d 344, 346 (Tex. Crim. App. 2017).
Reed Concurring — 3
that the applicant in that case had not sought habeas corpus relief for
counsel’s failure to object to the cumulation order. 4 And two of the
judges whose votes were necessary to establish a majority for the denial
of relief specifically noted that a claim of ineffective assistance based
upon the failure to challenge an illegal cumulation order would be
cognizable. 5 Carter also did not address what the appropriate remedy
should be for such a claim. 6 The Court rightly avoids expanding the
scope of a non-binding, plurality opinion to limit consideration of certain
types of ineffective assistance claims particularly considering that no
one has asked us to.
Moreover, this case highlights what a waste of judicial resources it
has been to continuously tinker with our cognizability jurisprudence.
Our holding that a bare challenge to an illegal cumulation order cannot
be raised for the first time in a writ application only funneled such claims
through the nozzle of ineffective assistance of counsel. 7 It did not clarify
4
Id. at 350.
5
Id. at 354 (Newell, J. concurring) (“Given that Applicant is not challenging the improper
cumulation order as a subset of his ineffective assistance claim, I agree with the Court’s
decision to deny relief on that ground as well. Otherwise, I would have granted relief on
Applicant’s ineffective assistance claim.”).
6
Id.7
See id.Reed Concurring — 4
our already complicated habeas corpus jurisprudence, and it is hardly
more efficient to keep forcing advocates to reframe their legitimate
claims. Shifting the remedy in this case from deletion of the illegal
cumulation order to an out of time appeal turns the process into a shell
game.
The writ of habeas corpus has always been about removing illegal
restraint. 8 Deleting the illegal cumulation order in this case removes
the illegal restraint. Granting an out of time appeal just forces this Court
and a court of appeals to waste judicial resources on yet another appeal
to get to the same relief. 9 The parties and the habeas court all agree
on a more proper and efficient solution. We should defer to them.
With these thoughts, I join this Court’s order granting relief and
deleting the illegal cumulation order.
Filed: September 21, 2022
Publish
8
TEX. CODE CRIM. PROC., art. 11.01; Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002)
(“The purpose of a writ of habeas corpus is to obtain a speedy and effective adjudication of a
person’s right to liberation from illegal restraint.”) (citing Blackledge v. Allison, 431 U.S. 63,
71 (1977) (“[T]he very purpose of the writ of habeas corpus [is] to safeguard a person’s
freedom from detention in violation of constitutional guarantees.”)).
9
Granting an out-of-time appeal also recognizes the merit of the underlying legal argument
that Applicant was harmed by counsel’s failure to challenge the improper cumulation order.
See Robbins, 914 S.W. at 584.
Reed Concurring — 5