Ex Parte Snow , 151 Tex. Crim. 640 ( 1948 )

This proceeding was instituted in the District Court by the appellant, for the purpose of securing his release from the penitentiary. We copy with approval the following concise statement of the facts as found in the brief filed by the State's attorney.

"Relator presented his application for writ of habeas corpus to the Honorable H. F. Kirby, Judge of the 77th District Court in and for Limestone County, Texas. Same was ordered filed and set down for hearing, and, upon a hearing before the judge of said court, the facts were ascertained and ordered certified to the Court of Criminal Appeals.

"Relator contends that he is being illegally restrained of his liberty as a result of the revocation of a conditional pardon by the Governor of the State of Texas.

"The facts reflect that, on or about April 12, 1940, Relator was received at the Texas Penitentiary to begin serving sentences imposed upon him by the District Courts of Williamson, Waller, Fort Bend and Chambers Counties, Texas; that the sentences received in each of the counties except Waller have been satisfied by the appellant, but that he was sentenced in the District Court of Waller County in cause No. 3436 on the 11th day of October, 1939, to a term of six years in the penitentiary, and on the same date, to-wit, October 11, 1939, in cause No. 3437, District Court Waller County, relator was sentenced to six years in the penitentiary, and said sentence was made cumulative of the sentence imposed in cause No. 3436; and it was provided that such sentence should begin at the expiration of the sentence in cause No. 3436.

"Relator gave notice of appeal in each of said causes to the Court of Criminal Appeals, and the judgment and sentence in each case was affirmed by the Court of Criminal Appeals, on the 12th day of April, 1940.

"Relator was actually confined in the State Penitentiary between the dates of April 12, 1940, and June 28, 1943, on which last said date he was granted a six-months reprieve by the Honorable Coke R. Stevenson, Governor of the State of Texas;

"Thereafter, on the 8th day of December, 1943, relator was granted a one-year extension of such reprieve by the Governor of Texas, and thereafter, on the 5th day of September, 1944, relator was granted a conditional pardon by the Honorable Coke R. Stevenson, then Governor of Texas;

"That, to-wit, on the 15th of October, 1947, the Honorable Beauford H. Jester, Governor of Texas, revoked relator's conditional pardon theretofore granted to him on September 5, 1944, and, in said revocation, it was ordered that Relator be returned and confined in the penitentiary to serve the sentences originally imposed upon him, or so much thereof as had not been served at the time of his release under said conditional pardon, or to any previous acts of clemency, and directed that he be kept in charge by the prison authorities and further providing that during the time which Relator had been at large under said conditional pardon, or any previous acts of clemency, same should not be considered or credited to the time served on such sentence.

"The statement of facts reflects that at the time Relator was given a six-months reprieve, to-wit, June 28, 1943, that he had served three years, two months and 21 days calendar time, and that he had to his credit, as commutation time or overtime, two years, one month and 23 days, making a total aggregate to his credit of five years, four months and 14 days."

Appellant takes the position that he was entitled to an overtime credit of 20 days for each calendar month during the time he was out of the penitentiary under the several acts of clemency extended him by the Governor. In view of the disposition we make of the other issues herein, it will not be necessary to discuss this issue.

It is also the contention that the Governor had no power to revoke the conditional pardon until after the Board of Pardons and Paroles had held a hearing and made a recommendation accordingly to the Governor. The authorities on this subject were discussed in Ex Parte Ferdin, 183 S.W.2d 466, and the conclusion therein reached is contrary to such proposition.

The oral argument that the wording of the sentence making the second sentence in Waller County cumulative of the first sentence is not sufficiently clear and specific to have the effect of doing so, does not present any difficulty in the mind of the writer. It is purely a question as to whether or not he has sufficiently described the Cause No. 3436, which is the preceding case in numerical order.

In the statement of facts we find a certified copy of the minutes of the District Court of Waller County, Texas, and the judgment against Dewey Snow in Cause No. 3436 was dated September 27, 1939. On October 11, 1939, he was sentenced to serve a six year term in the penitentiary. The record also discloses that on September 28, 1939, he was found guilty in Cause No. 3437, and that he was sentenced in said cause on the 11th day of October, 1939, to serve the punishment assessed by the verdict of a jury at confinement in the penitentiary for six years. It is further recited in said sentence: "This sentence to begin at expiration of sentence in Cause No. 3436." The question is whether or not the language quoted is sufficient to make it cumulative of the sentence in Cause No. 3436. The matter will be determined from the entire record now before us, as it was before the judge of the trial court. Appellant had been previously convicted in Cause No. 3436, and sentenced on the same date as the sentence in Cause No. 3437. We see no difficulty which the authorities of the penitentiary might have, with the record in both cases before them at the same time, in determining what is meant by the quoted sentence. Had there been cases from different courts, and far removed in dates, a serious question would be presented. When the record is considered as a whole, it is shown that the judge had both cases before him at the same time, the reference appears to be amply sufficient to direct the authorities to the case which he had in mind. Having so directed them, we see no question as to which sentence the cause here involved is to follow.

With the issues thus determined, the relief prayed for is denied and the respondent is directed to deliver the said Dewey Snow to the authorities of the State Penitentiary to serve the balance of the time for which he was committed.

ON MOTION FOR REHEARING.