¶1concurs in part and dissents in part: I concur in the Court’s decision to grant the State’s motion for rehearing. I dissent to the Court’s denial of habeas relief, however, on a ground that has not been raised or argued by the parties. The State has motioned this Court for rehearing on a narrow and specific ground. At the very least, the Court should grant rehearing on its own motion instead of suggesting that the State’s motion somehow raises the issue addressed by the Court today.
¶2dissenting on State’s motion for rehearing after written opinion.
¶3I dissent to the majority’s determination that a defendant, in accordance with a plea agreement, can waive the statutory requirement that sentences run concurrently when imposed in a single prosecution arising from a single criminal episode.
¶4The majority opinion overrules that portion of Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Cr.App.1993) which held that the operation of V.T.C.A. Penal Code, § 3.03 creates an absolute restriction of a trial court’s general authority to impose consecutive sentences. And interestingly, the State’s untimely Motion for Rehearing, which was not filed until months after the deadline for filing such had expired, mandate had been issued by this Court, and the opinion had been published as Ex parte McJunkins, 926 S.W.2d 296 (Tex.Cr.App.1996), does not seek to overrule Sims, but rather simply informs the Court that it is relinquishing the benefit of the plea agreement and “agrees that the deletion of the cumulation order is proper in these cases.” Thus the majority for some reason reaches out and addresses an issue which is not even raised by the State’s own Motion; apparently the majority is taking the initiative to re-write the State’s Motion.
¶5The issue, as created by the majority, is whether a waiver of the right to sever the consolidated prosecution of multiple offenses arising out of a single criminal episode, nullifies the prohibition against the imposing consecutive sentences. This Court recognizes “three types of rules in our legal system: absolute requirements and prohibitions which cannot be waived or forfeited; rights of litigants which must be implemented unless affirmatively waived; and rights of litigants which are implemented upon request and can be forfeited by a failure to invoke them.” Ex parte Sims, 868 S.W.2d 803, 804(Tex.Cr.App.l993); also see Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Cr.App.1993).
¶6When the State elects to consolidate prosecution of multiple offenses arising out of a single criminal episode, pursuant to V.T.C.A. Penal Code § 3.04(a) “the defendant shall have a right to a severance of the offenses[;]” i.e. the defendant has the right to demand a severance. If the defendant does not demand a severance, the parties must abide by the statutory requirements of § 3.03. The decision to enter into a plea agreement which implicates § 3.03 requires a weighing of interests by both parties. While the State benefits by securing multiple convictions and clearing its docket, it relinquishes the opportunity to obtain consecutive sentences. Similarly, while the defendant benefits from concurrent sentencing, he accepts multiple convictions and forfeits his right to demand separate trials which could result in acquittal or conviction of lesser offenses.
¶7In accordance with LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Cr.App.1992), it is inconsistent with the intent of § 3.03 to allow the State the benefit of consolidating prosecution while denying the defendant the benefit of concurrent sentencing. Contrary to the majority’s holding, § 3.03 does not create a right of the litigant which can be waived for the purpose of a plea agreement. This was made most clear in LaPortewhere a unanimous Court stated:
The trial court’s general authority under Article 42.08, V.A.C.C.P., to order consecutive sentences is statutorily limited by Section 3.03 whenever a single criminal action arising out of the same criminal episode occurs, whether based upon a single charging instrument or several charging instruments .... If the facts show the proceeding is a single criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences. An improper cumula*43tion order is, in essence, a void sentence, and such error cannot be waived. ...
¶8LaPorte, 840 S.W.2d at 415.
¶9With no right conferred, a defendant has nothing to waive. Section 3.03 creates an absolute prohibition on the trial court from imposing consecutive sentences after the State elects to prosecute multiple offenses arising out of a single criminal episode in a single criminal action. “A defendant may not by agreement render legal a punishment which is not otherwise authorized by law.” Sims, 868 S.W.2d at 804, citing Heath v. State, 817 S.W.2d 335 (Tex.Cr.App.1991). Since the defendant is not vested with such a right to concurrent sentences, and it is impermissible for a defendant to waive an absolute prohibition, the statutory requirement of imposing concurrent sentences should be upheld.
¶10The majority opinion in essence would overrule this Court’s caselaw simply by judicial fiat rather than by well-reasoned analysis.
¶11In concocting an issue out of thin air which the State does not even raise, apparently for the purpose of overruling Sims, the majority’s opinion is an inappropriate exhibition of judicial activism.
¶12Because the majority does not uphold the explicit requirement of § 3.03, and grants relief outside the scope of the State’s Motion for Rehearing, I dissent.
¶13BAIRD, J., joins with note. The parties who appear before this Court have every right to believe their issues will be resolved in a fair and impartial manner. Making decisions in this manner is our sole source of credibility. If we should reach out and resolve issues not raised by the parties we would correctly be seen as partisan advocates, not as impartial jurists.
¶14As Judge Overstreet correctly notes, the State did not ask us to revisit our holdings in LaPorteand Sims. The State merely asks that the cumulation order be deleted. Nev*44ertheless, the majority reaches out and intentionally distorts the holding in LaPorteand overrules Sims. In doing so, the majority shall not be seen as impartial jurists but for what they are, partisan advocates advancing an agenda of reaching results which ultimately benefit the State.
¶15. The majority maintains that LaPortewas correctly decided "in the context of that case[J" Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex.Cr.App.1997) (op. on reh'g). But LaPorteis anything but case specific. Indeed, it has been relied upon and cited in scores of unpublished opinions and numerous published opinions, all clearly stating the standard under LaPorte. See, Johnson v. State, 930 S.W.2d 589 (Tex.Cr.App.1996); Robbins v. State, 914 S.W.2d 582 (Tex.Cr.App.1996); Ex parte Pharr, 897 S.W.2d 795 (Tex.Cr.App.1995); Guidry v. State, 896 S.W.2d 798 (Tex.Cr.App.1995); Ex parte Sims, 868 S.W.2d 803 (Tex.Cr.App.1993); Duran v. State, 844 S.W.2d 745 (Tex.Cr.App.1992); Polanco v. State, 914 S.W.2d 269 (Tex.App.—Beaumont 1996, pet. ref’d); Jones v. State, 852 S.W.2d 710 (Tex.App.—Corpus Christi 1993, no pet.); Crider v. State, 848 S.W.2d 308 (Tex.App.-Fort Worth 1993, pet. ref'd).
¶16. The majority's reliance upon U.S. v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), at 41, is misplaced. The BroceCourt held a defendant who pleads guilty to two separate offenses cannot later collaterally attack those pleas with a claim of double jeopardy. The Court held, "Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he has committed two separate crimes.” Broce, 488 U.S. at 570, 109 S.Ct. at 763, 102 L.Ed.2d at 936. On collateral review Broce was seeking to reduce the number of his convictions from two to one on a claim of jeopardy; he was not claiming his sentence was illegal. As the Supreme Court stated:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.
Broce, 488 U.S. at 569, 109 S.Ct. at 762, 102 L.Ed.2d at 935. (Emphasis added.) Applicant is seeking a legal sentence for two separate convictions, not claiming he should be convicted for just one offense as Broce alleged. The trial court had no authority to stack the sentences. While the majority holds this waiver is "nothing novel[,]” the defendant cannot waive binding law which the trial court must follow.