# Ex parte Carter

> Court of Criminal Appeals of Texas · June 7, 2017 · 521 S.W.3d 344

URL: https://www.frixlaw.com/law-library/cases/5287260

## Case

- **Full name:** EX PARTE Roger Dale CARTER, Applicant
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 7, 2017
- **Citations:** 521 S.W.3d 344; 2017 Tex. Crim. App. LEXIS 564; 2017 WL 2458187
- **Precedential status:** Published
- **Opinion:** Concurrence by Newell
- **Judges:** Alcala, Hervey, Keasler, Keller, Newell, Richardson, Yeary
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5287260

## How later opinions describe it (automated extraction)

- observing that a defendant may be incentivized to agree to consolidation of a punishment proceeding because “he could insist upon the imposition of concurrent rather than consecutive sentences, thus taking the normative decision away from the trial judge”
- stating that "[a]n improper cumulation order may be remedied by reformation on appeal or, in the proper circumstance, a judgment nunc pro tunc "
- finding that“[a]n improper cumulation order may be remedied by reformation on appeal or, in the proper circumstance, a judgment nunc pro tunc”

## Opinion text

Newell, J.,
filed a concurring opinion in which Hervey, J., joined.
We previously held in Ex parte Townsend that a defendant cannot raise a claim that the trial court lacked ■ authority to cumulate or “stack” his sentences for the first time in a post-conviction application for a writ of habeas corpus. 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). In this case, Applicant seeks to challenge the trial court’s cumulation order for the first time in a post-conviction application for a writ of habeas corpus. In light of Townsend, I agree with the Court’s order denying ha-beas corpus relief.
However, prior to our decision in Townsend, we held in LaPorte v. State that a complaint about an improper cumulation order may be raised at any time because the improper order results in a void sentence. 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). We have long held that a defect which renders a sentence void may be raised at any time. Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam); see also Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979) (habeas corpus relief will issue to a person in custody under a sentence which is void because the punishment is unauthorized). It seems like we necessarily overruled this *355 portion of LaPorte when we held in Townsend that a challenge to an improper cu-mulation order cannot actually be raised at any time; it must be raised on direct appeal. But if we did not, the Court expressly overrules that portion of LaPorte today. I join these aspects of the Court’s opinion.
I also agree that Applicant’s ineffective assistance claim does not fault counsel for her failure to object at trial to the trial court’s cumulation order. The trial court reviewed the pleadings and the affidavit of Applicant’s trial counsel and entered a finding of fact that Applicant did not claim that his attorney was ineffective for failing to challenge the cumulation of his sentences at trial or on appeal. Having reviewed the pleadings and the affidavit of trial counsel, I believe this finding is supported by the record. Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005) (holding that Court should defer to findings if they are supported by the record). Given that Applicant is not challenging the improper cumulation order as a subset of his ineffective assistance claim, I agree with the Courtfs decision to deny relief on that ground as well. Otherwise, I would have granted relief on Applicant’s ineffective assistance claim.
With these thoughts I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5287260. Public record. Not legal advice.