Ex parte Walker ( 1952 )

BEAUCHAMP, Judge.

By his application for writ of habeas corpus relator seeks to secure his discharge from the penitentiary from two judgments of conviction hereinafter stated.

On December 13, 1948, he was given a sentence of five years in the penitentiary upon his plea of guilty to a charge of burglary before the district court, Lubbock, Texas. On the 7th day of February, 1949, he was found guilty by a jury verdict in the district court of Howard County, Texas, and assessed a penalty of two years in the penitentiary. In sentencing him under said conviction, on the date of the jury’s verdict, the court added: “This sentence shall not run concurrent with any other sentence heretofore received.”

We have so frequently held that such order, attempting to cumulate the sentence, is ineffective for the purpose intended that it will not be necessary to‘cite the authorities. Under the law this sentence runs concurrent with the former sentence from Lubbock County.

A statement from the record clerk of the penitentiary at Huntsville, dated April 28, 1952, shows relator to be entitled to a net credit, on that date, for good time and otherwise, of 5 years and 12 days. The certificate is not clear as to whether or not there are other sentences under which he may be held as a prisoner in the penitentiary. Relator is entitled to his discharge under the two cases discussed and, unless there are others, he will be released from further service.