Ex parte McJunkins

OPINION ON STATE’S MOTION FOR REHEARING

WOMACK, Judge.

When this case was first submitted, this Court granted post-conviction habeas corpus relief to the applicant because he was subjected to consecutive sentences on two convictions that were obtained in a single criminal action.

The applicant had been indicted for capital murder. He and the State made a plea bargain agreement that if the applicant would plead guilty to two informations charging him with murder with a deadly weapon and aggravated robbery, the State would recommend two consecutive sentences of life imprisonment and dismiss the capital murder indictment. The agreement was carried out on March 1, 1990. In one criminal action, the applicant waived his right to trial by jury and entered his guilty pleas to the murder and aggravated robbery informations, and the trial court sentenced him to two consecutive life sentences. He did not appeal, but on July 10, 1995, he filed an application for habeas corpus relief from the order that cumulated the sentences. This Court granted habeas corpus relief by setting aside both judgments of conviction and ordering the applicant returned to the county of conviction to answer the charges. 926 S.W.2d 296.

We withdrew our mandate and granted rehearing when the State offered to relinquish the cumulation order. The question of whether the State can waive the benefit of the cumulation order naturally raises, and causes us to reconsider, the question which is its counterpart: whether a defendant can waive the benefit of the concurring sentencing provisions.

The decision on the first submission of this case was in accord with Ex parte Sims, 868 S.W.2d 803 (Tex.Cr.App.1993), which held that (1) the defendant cannot waive the statutory requirement that sentences imposed in a single criminal action shall run concurrently, but (2) it would be illogical and unfair to simply delete the cumulation order, because the State would be detrimentally bound to the plea bargain agreement while the defendant would be relieved of it.

The Sims opinion began by asking whether a defendant may waive the requirement of Penal Code Section 3.03 that multiple sentences run concurrently if they arise out of the same criminal episode and are imposed in a single criminal action. The opinion, properly, noted the basic division of legal rules into (1) absolute requirements and prohibitions which cannot be waived or forfeited, (2) rights of litigants that must be implemented unless affirmatively waived, and (3) rights of litigants that are implemented on request but are forfeited by a failure to invoke them. See generally Marin v. State, 851 S.W.2d 275, 278-280 (Tex.Cr.App.1993). The Sims Court decided that Section 3.03 “creates an absolute restriction of a trial court’s general authority to impose consecutive sentences similar to the restrictions Article 42.12, § 3g(a), V.A.C.C.P., places on a trial court’s general authority to grant probation, as was addressed in Heath [v. State, 817 S.W.2d 335 (Tex.Cr.App.1991) ].” 868 S.W.2d at 804.

We see now that the analogy drawn in Sims between Section 3.03 of the Penal Code and Section 3g(a) of the Community Supervision Statute is flawed. Section 3.03 creates rights of litigants rather than an absolute prohibition like that created by Section 3g(a).

Section 3g(a) of the Community Supervision Statute is correctly characterized as a restriction of the trial court’s authority to grant community supervision after conviction. The trial court’s authority was granted “under such conditions as the Legislature may prescribe.” Texas Constitution, Article IV, Section 11A. With Section 3g(a) the legislature took away the trial court’s authority to grant community supervision without the recommendation of a jury in certain kinds of violent offenses. Plea bargains for probated sentences in such cases were among, and perhaps the first of, the evils sought to be remedied by the statute. It would be perverse to construe the statute as creating a right that the litigants could agree to waive.

In contrast, the mandatory concurrent-sentence provision of Penal Code Section 3.03 is altogether dependent on the choices of the parties. The State has the choice to lay the predicate for mandatory concurrent sentencing by choosing whether to join (or consolidate) them in a single criminal action. If, and only if, the State chooses joinder or consolidation, the defendant has the choice whether to demand a severance. If, and only if, the defendant chooses not to demand a severance will Section 3.03 come into effect through the trial in a single criminal action of multiple offenses arising from a single criminal episode.

These provisions involve a trade-off; a prosecutor is encouraged to clear case dockets by trying more than one case in a single trial whenever multiple offenses arising from a single criminal episode are alleged against a single defendant, and a defendant benefits by not being burdened with the possibility of consecutive sentences and a string of trials for offenses arising out of a single criminal episode. Section 3.04 provides a defendant the right to have separate trials if he so desires.

LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Cr.App.1992). Just as a defendant may fore-go the right to separate trials, a defendant may forego the right to concurrent sentences. Because the operation of Section 3.03 requires the consent of both litigants, it is properly characterized as a right of a litigant rather than as an absolute requirement or prohibition which cannot be waived or forfeited.

There is nothing novel about holding that a litigant can waive a right that, were it not waived, would prohibit a court from entering judgment for multiple convictions and sentences. See United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (defendant who entered knowing, counseled, and voluntary pleas of guilty to two indictments in a single proceeding could not thereafter collaterally attack judgment on basis that under double jeopardy principles he was subject to prosecution for only one offense).

The first holding of Ex parte Sims is therefore overruled.

We should not be understood as holding that LaPorte v. State, supra, was wrongly decided. LaPorte was subjected to jury trial of two consolidated indictments that arose out of the same criminal episode. He did not demand severance, and he did not waive his right to concurrent sentencing under Section 3.03. He raised the issue of improper cumu-lation on direct appeal. This Court correctly held that Section 3.03 applied to the trial of consolidated indictments even though the State had failed to give the notice of consolidation which Section 3.02 requires, that the appellant could raise the point for the first time on appeal, and that the judgments should be reformed to delete the cumulation order. The statement in LaPorte that a trial court may not order consecutive sentences when charges arising out of the same criminal episode are tried in a single criminal proceeding (840 S.W.2d at 415) is correct in the context of that case, in which no waiver was made.

In this case the applicant pleaded guilty, and was convicted and sentenced, in accordance with a plea bargaining agreement in which he specifically accepted the imposition of consecutive sentences in a single criminal action. There is no allegation that his decision was not counseled, intelligent, and voluntary. We hold that his decisions not to request a severance, and to accept the imposition of consecutive sentences imposed in a single criminal action for two offenses arising out of the same criminal episode, were valid waivers of his right to concurrent sentences. The State’s motion for rehearing is granted, and habeas corpus relief is denied.

. From January 1, 1974 through August 31, 1995, Tex. Penal Code, § 3.03 read:

When an accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.

The section was amended in 1995 to exempt the offense of intoxication manslaughter. H.B. 93, 74th Legislature—Regular Session; Acts 1995, ch. 596.

. Tex.Code Crim. Proc., art. 42.12 (formerly known as the Adult Probation Statute).

. As enacted in S.B. 152, § 1, 65th Legislature— Regular Session; Acts 1977, ch. 347, § 1, the relevant subsection read:

(a) The provisions of Sections 3 and 3c of this Article [which respectively authorized the trial judges to grant probation after conviction in the absence of a juiy’s recommendation and even against the recommendation of a jury] do not apply:

(1) to a defendant adjudged guilty of an offense defined by the following sections of the Penal Code:

(A) Section 19.03 (Capital murder);

(B) Section 20.04 (Aggravated kidnaping);

(C) Section 21.0 (Aggravated rape);

(D) Section 21.05 (Aggravated sexual abuse);

(E) Section 29.03 (Aggravated robbery); or

(2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.

Later amendments have expanded the restriction by adding offenses and by incorporating the law of parties in the deadly weapon provision.

.The permissive nature of joinder appears in Tex.Code Crim. Proc., art. 21.24 ("Two or more offenses may be joined ...”). A proposal for mandatory joinder or consolidation of all offenses arising from a criminal episode was considered and rejected by the legislature in 1973. See Stevens v. State 667 S.W.2d 534 (Tex.Cr.App.1984).

. Tex. Penal Code, § 3.04.

. The LaPorte opinion said that the erroneous cumulation order was "in essence, a void sentence.” 840 S.W.2d at 415. We have no occasion in this case to consider which errors render a sentence "void,” or whether such labels are useful in the decision of dissimilar cases. There was no error in the entry of the cumulation order in this case.