TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

Post Conviction Remedies
Pursuant to Article 1 1 .O7, V.A.C.C. P.
by John G. Jasuta
Part 1V
Cumulation of Sentences
Improper cumulation of sentences can
entitle an applicant to relief. Exparte Jordan,
562 S.W.2d 483 (Tex. Cr. App.
1978); Ex parte Ashe, 641 S.W.2d 243
(Tex. Cr. App. 1982). The most recent
case dealing with cumulation of sentences,
even though not decided under Article
11.07, is very instructive as to the general
area of the law. In State ex. re/. lhomas
v. Banner, No. 69,658 (Tex, Cr. App.
1987) the Court held that multiple shock
probations cannot be stacked and a mandamus
action will lie to force dismissal of
an order purporting to do so.
Prior Convictions
The subject of prior convictions, like
time credits, is usually intertwined with
other issues and thus many of the cases discussed
herein will have already been mentimed.
However, a few general thoughts
follow.
We start with theproposition that anapplicant
may be entitled to relief if it is
shown that a prior conviction used to enhance
punishment is void. Ex parte
Stewart, 582 S.W.2d 144 (Tex. Cr. App.
1979). A distinction previously discussed
must he reiterated. NonjurisdictionaI
grounds in prior conv~ctions which render
those priors void are waived by a failure
to object at the trial where the priors were
introduced. Priors where there were no attorneys
present were uscd without objection
in Er narte Sa~~ders. 588 S.W.2d 520
(Tex. C ~.'A~~. 1982) and Exparte Todd,
I. "I"..
ULW Ex parte Bagley, 509 S.W.2d 332
vex. Cr. App. 1974) where the Court held
that the failure to object to the introduction
of a confession on the grounds that he
was not warned under Miranda was a
waiver of that contention for habeas purposes.
Where the prior used was based on a
fundamentally defective indictment the
question of whether or not relief will be
granted depends on the use to which the
prior conviction is put. If the conviction
was used to enhance punishment, no objection
is required. However, if it is used
as a part of the applicant's prior criminal
history, an objection would be required to
preserve it. Otherwise, there is a waiver.
Ex parte Russell, 738 S.W.2d 644 (Tex.
Cr. ADD. 1987): Lk uarte Nive~is. 610
~ . ~ . 184 2 d (T~x. ~r: App. 1981). Im-
A graduate of the Univemity of Texas at proper impeachment with a void prior also
Austin and St. Mary's U~iiversity School requires an objectionor it is waived. Goodoflav,
lie has been a member of the Staff rich v. State, 632 S.W.2d 349 (Tex. Cr.
Cotoisel for Inmates, Texas Department of App. 1982).
Correctio~ts, the General Courrsel to the When contemplating an attack on a prior
Board of Pardons and Paroles, a StagAt- conviction through habeas corpus one
torney for the Court of Criminal Appeals should also keep in mind the doctrine of
and, for the post serwal years, the Chief laches. Bunley v. State, 614 S.W.2d 834
Staff Attorizey for the some Court. (Tex. Cr. App. 1981).
A conviction used to enhance punishment
which was obtained in a retrial after
an appellate finding of evidentiary insufficiency
pursuant to Article 1.15,
V.A.C.C.P., is void and caused reversal
669 S.W.2d 738 (Tex. Cr. App. 1984). In of the primary convictionon original sub-
Exparte Gill, 509 S.W.2d 357 (Tex. Cr. mission. On rehearing the Court's ruling
App. 1974) the Court held that the failure was reversed to allow such conviction to
to object to a probation revocation as void be used. Ex parte Martin, No. 67,540
due to a lack of counsel when it was intro- (Tex. Cr. App. 1988). Retrial as a habitduced
is a waiver of the contention. See ual criminal is also prohibited after an ap-
September 1988 i VOICE for the Defense 19