Simmons, Will Donnell Appeal from Criminal District Court 2 of Dallas County of Dallas County (concurring by judge meyers)

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-16,370-02 EX PARTE WILL DONNELL SIMMONS, Applicant ON APPLICATION FOR A WRITE OF HABEAS CORPUS CAUSE NO. W91-00848-I(A) IN CRIMINAL DISTRICT COURT NO. 2 DALLAS COUNTY M EYERS, J., filed a concurring opinion. CONCURRING OPINION While I agree with the majority’s granting Applicant relief, I disagree with the majority’s characterization of the mandate for concurrent sentences in this situation as a right. Section 3.03(a) of the Texas Penal Code tells the trial court that when a defendant is convicted of multiple crimes arising out of the same criminal episode that are prosecuted in a single action, the sentences must run concurrently. Therefore, the court does not have the authority to stack these types of sentences. This is different than the defendant having a right which can be waived or forfeited. In this case, the improper stacking order is based upon the court’s lack of authority, Simmons concurrence - Page 2 rather than the defendant’s assertion of a right. With the exception of the labeling of concurrent sentencing as a right, I join the majority’s opinion. Meyers, J. Filed: October 28, 2015 Do Not Publish

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