Ex parte McJunkins, 72410

• Decision Date: 26 June 1996
• Docket Number: No. 72410,72410
• Parties: Ex parte James Howard McJUNKINS.
• Court: Texas Court of Criminal Appeals

Page 296

926 S.W.2d 296

Ex parte James Howard McJUNKINS.

No. 72410.

Court of Criminal Appeals of Texas,

En Banc.

June 26, 1996.

James Howard McJunkins, Lovelady, pro se.

Patrick C. Batchelor, Dist. Atty., Corsicana, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. In a single proceeding Applicant was convicted of murder and aggravated robbery in cause numbers 23706 and 23707, respectively, following a plea bargain by which a single capital murder indictment was dismissed. Pursuant to that plea bargain, punishment was assessed at life imprisonment for each offense, with the sentence in 23707 to run consecutively with that assessed in 23706. The cumulation of the sentences was part of the plea agreement. There was no appeal.

Applicant challenges that part of the plea bargain which requires 23707 to run consecutively under LaPorte v. State, 832 S.W.2d 597 (Tex.Crim.App.1992), because he was tried in a single criminal action for offenses arising out of the same criminal episode. See V.T.C.A. Penal Code, §§ 3.01, 3.02 and 3.03. Applicant contends that his pleas of guilty should be withdrawn and both parties should be returned to their positions prior to the pleas of guilty. The trial court has made no findings of fact and conclusions of law pursuant to the present writ application.

Pursuant to a previous writ application, however, the trial court entered findings of fact and conclusions of law in which it was found:

The Court finds it conducted a single hearing on the matter on March 1, 1990. The Court further finds that after the Defendant signed stipulations of evidence, and waived indictment and trial by jury in both causes, the Court accepted both pleas of guilty, contemporaneously, at this same hearing. Based on the recommendation of the State's attorney, the Court imposed a life sentence in Cause # 23706, and a life sentence in Cause # 23707 to run consecutive. Based on the recommendation of the State's attorney, on March 1, 1990, this Court signed an order dismissing the Capital Murder charges pending against the Defendant.

We agree that the cumulation orders are improper under §§ 3.01, 3.02, and 3.03 and the reasoning set out in LaPorte.

In Ex parte Sims, 868 S.W.2d 803 (Tex.Crim.App.1993), we held that where the record reflects a plea bargain for the possibility of improper consecutive sentences, reformation to delete the "stacking" order was not the proper remedy. Rather, "[t]he parties must be returned to their positions prior to the plea of guilty." Sims, 868 S.W.2d at 805. In Sims the plea bargain was for the possibility of consecutive sentences whereas in the instant case the plea bargain was for consecutive sentences.

In Sims we also stated that if we were simply to delete the cumulation order, only the State would be bound detrimentally to that aspect of the plea agreement. Sims, 868 S.W.2d at 805. That is because a cumulation order is obviously to the State's benefit and to Applicant's disadvantage. We concluded that deletion of the order requiring consecutive sentences would be neither logical nor fair. Id.

The State has not filed a reply to the present writ application, and has not informed this Court that it would forebear and relinquish that benefit of the plea agreement of which the State will be deprived if the cumulation order is held to be invalid. Specific performance is not possible, deletion of the cumulation order would unfairly inure to Applicant, and the State has not expressed its desire to forebear and relinquish that aspect of the plea agreement that requires that the sentences run consecutively. Consequently, the judgments in cause numbers 23706 and 23707 from the 13th Judicial District Court of Navarro County are set aside and it is ordered that Applicant be returned to the custody of the Navarro County sheriff to answer the charging instruments in these causes.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional and Pardons and Paroles Divisions.

DISSENTING OPINION

BAIRD, Judge, dissenting.

Applicant was initially indicted for capital murder in cause no. 23,647. The parties entered into a plea bargain agreement whereby the State agreed to dismiss the capital murder charges and appellant agreed to plead guilty to the separate offenses of murder, cause no. 23,706, and aggravated robbery, cause no. 23,707, that punishment for each offense would be assessed at confinement for life and that the sentences would be consecutive.

Applicant now seeks habeas corpus relief, contending the cumulation order is invalid under Tex. Penal Code Ann. §§ 3.01, 3.02 and 3.03 because he was tried in a single criminal action for offenses arising out of the same criminal episode. We all agree that under LaPorte v. State, 840 S.W.2d 412 (Tex.Cr.App.1992), the cumulation order is invalid. Where I part company with the majority is on the remaining issue of what relief is appropriate.

I.

In Ex parte Sims, 868 S.W.2d 803 (Tex.Cr.App.1993), we addressed the identical situation. The State dismissed the capital murder charges against Sims, he pled guilty to two separate offenses of murder and the sentences were cumulated. Under LaPorte the cumulation order was invalid. However, because the possibility of consecutive sentences was part of the plea bargain agreement and because specific performance of the bargain could not be obtained, we returned the parties to their positions prior to the plea of guilty, set aside the judgments and ordered Sims to answer the charging instruments in each case. Id., 868 S.W.2d at 805. Consequently, under Sims the majority appropriately sets aside the judgments in cause nos. 23,706 and 23,707 and orders applicant returned to Navarro County to answer the informations in these cases. However, for the following reasons, I believe this remedy is unacceptable under the unique circumstances presented when the defendant is initially charged with a capital offense.

II.

Initially, the State had the option of prosecuting applicant for capital murder. But the State relinquished that option in the plea bargain agreement. However, because of the unique nature of capital murder prosecutions, where the State has dismissed the capital murder allegations pursuant to a plea bargain agreement that is later determined to be unenforceable, the State cannot subsequently seek to prosecute the defendant for capital murder because such action violates the Due Process Clause's prohibition against prosecutorial vindictiveness.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held the Due Process Clause is violated when a defendant is punished for successfully exercising his constitutional or statutory rights. Id., 395 U.S. at 724, 89 S.Ct. at 2080.

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

Ibid. [Emphasis added.] To make sure that vindictiveness plays no part in a harsher sentence, the Court concluded "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear [in the record]." Id., 395 U.S. at 726, 89 S.Ct. at 2081. The Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, only by those which pose a realistic likelihood of vindictiveness. See, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and cases cited therein.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court considered whether due process required a rule analogous to Pearce, in situations where prosecutors had the opportunity for vindictiveness. Perry, 417 U.S. at 27, 94 S.Ct. at 2102. Perry was convicted of misdemeanor assault. Under North Carolina law, Perry was entitled to a trial de novo on appeal. However, while his appeal was pending, the State obtained a felony assault indictment against Perry covering the same conduct. Perry pled guilty to the felony, but later sought habeas relief. Id., 417 U.S. at 23-24, 94 S.Ct. at 2100. The Supreme Court held Pearce applied to prosecutors:

A prosecutor clearly has a considerable stake in discouraging the convicted misdemeanant from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before ...