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Click here for the full text of this decision FACTS:Terry Rhodes was serving time in prison for burglary (three years) and aggravated sexual assault (45 years). He was bench-warranted to Smith County to answer for a theft offense. While in the Smith County jail, he escaped. Authorities ultimately convicted Rhodes on both the theft and escape charges. Authorities sentenced Rhodes to two years in state jail for the theft and 10 years in prison for the escape. The escape sentence was ordered to be run concurrently with the theft sentence. The written judgment for the escape conviction is silent as to whether the escape sentence was to run concurrently to or consecutively with Rhodes’ prior burglary and aggravated sexual assault sentences. This written judgment was also silent concerning whether or not there was a plea agreement. Rhodes later committed more crimes, and authorities ultimately charged him with new felony offenses of escape, burglary of a habitation and theft. The state alleged the two previous convictions for enhancement purposes. One of those previous judgments was for the Smith County escape case. Rhodes filed a motion to quash that enhancement allegation. Relying upon Texas Code of Criminal Procedure Art. 42.08, he claimed that the judgment was void, because the escape sentence was to run concurrently with his other sentences when the statute required that it be cumulated with the earlier burglary and sexual assault sentences he was serving at the time he committed the escape. The state presented three responses to Rhodes’ claim: 1. Art. 42.08(b) did not require the escape judgment to be stacked, because Rhodes was not actually “in” the prison system at the time of the escape, since he had been bench-warranted to the Smith County jail; 2. even if the judgment had to be stacked, the absence of stacking did not make the judgment void, and the deficiency could be corrected in a nunc pro tunc order; and 3. equitable notions of justice should prevent Rhodes from gaining the benefit of concurrent sentencing and then turning around to complain about it later. The trial court denied Rhodes’ motion, found the enhancement allegations to be true, and sentenced Rhodes as a habitual offender on all three offenses, receiving sentences of 33 years, 25 years and 25 years, respectively. On appeal, Rhodes re-urged his contention that the Smith County escape judgment was void. In response, the state re-urged the first argument it had made at trial. The 1st Court of Appeals found that Art. 42.08(b) required that the sentence for the Smith County escape be stacked onto the sentence for the previous aggravated sexual assault, and it found that the failure to stack rendered the previous judgment void and thus unusable for enhancement purposes. As a result, the 1st Court of Appeals reversed the judgment of the trial court and remanded the case for a new punishment hearing. The state filed a motion for rehearing, repeating its original argument and making several additional arguments. The 1st Court denied the motion for rehearing. The state also requested en banc consideration, but the 1st Court denied that request. In an opinion dissenting from the denial of en banc consideration, Justice Evelyn Keyes argued that a cumulation order is not part of a sentence, so its absence could not render a sentence void. HOLDING:The CCA reversed the judgment of the 1st Court of Appeals and affirmed the judgment of the trial court. The CCA found that there was no plea agreement on the concurrent sentencing issue. As a result, the judgment was not void and thus not subject to collateral attack, because it was at some point in time subject to reformation. Accordingly, Rhodes was estopped from challenging the judgment. In Part IIB of its judgment, the CCA further held that a defendant “who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency.” The CCA found that Rhodes received a judgment that was illegally lenient by having his sentence run concurrently instead of consecutively. Had he complained about the illegal leniency at the time of trial, or even on direct appeal, the state could likely have obtained a legal judgment that would now be available for enhancement purposes. Instead, the CCA found that Rhodes quietly enjoyed the benefits of the illegally lenient judgment, challenging it now only because, due to his own subsequent criminal conduct, the judgment could be used to enhance his punishment for a new offense. If he agreed to the concurrent sentencing provision, the CCA stated, then through his own conduct he helped procure and benefit from the illegality and he should not now be allowed to complain. OPINION:Keller, P.J., delivered the opinion of the court in which Keasler, Hervey, Holcomb and Cochran, JJ., joined. DISSENT:Meyers, Womack and Johnson, JJ., joined Parts I and IIA and dissented without an opinion as to Part IIB. Price, J., filed a dissenting opinion. “I respectfully dissent to the Court disposing of this case on the basis of an issue that was never decided by the court of appeals.”

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