Ex Parte Snow

In his motion for rehearing appellant has given attention to the question raised by oral argument on the original submission as to the sufficiency of the sentence in Cause No. 3437 to make it cumulative of the sentence in Cause No. 3436. The facts are sufficiently stated in the original opinion.

The contention is now made that the holding is in conflict with Bland v. State, 167 S.W.2d 761. We do not think so. While the Bland case, supra, was not cited, either in the original brief or in the opinion, still note was taken of it, and the facts in the instant case were discussed sufficiently to distinguish it from the Bland case. There the sentence of the court referred to a number of cases in various counties in general terms, and also to all cases against the accused tried or to be tried in Ellis County, including two cases by number in that county. The record failed to show whether these cases had been tried or were to be thereafter tried.

The two Waller County cases against Snow were appealed to this court and affirmed. See 138 S.W.2d 552. Any question about the sufficiency of the sentence should have been raised in this court at that time as was done in the Bland case. The judgment was affirmed in the two Snow cases without any complaint about the cumulative feature of the sentence which we are now asked to say was insufficient. The record which we have here as the basis of our decision in this case, made by the appellant in this procedure instituted for the purpose of securing his release, does show that the conviction had been had in Cause No. 3436 prior to that in Cause No. 3437, and that he was sentenced by the court in the two cases at the same time. If the circumstances in the Bland case had been the same when they came before this court, the same order should have been made as is here made. Furthermore, the record in this appeal discloses that the two cases here under consideration were in Waller County and that respondent was the defendant in each, even though the sentence does not repeat the fact. The appellant himself so testified. The judgment in each case was placed in evidence, and each judgment was included in the commitment sent to the penitentiary authorities.

The only question at issue herein is a failure of the trial court to mention in the sentence of Cause No. 3437 that Cause No. 3436 was from Waller County. As is shown by the record, the two cases, Nos. 3436 and 3437 were tried in Waller County and relator convicted thereunder. Both cases were appealed to this court, and no showing is made therein of any error in the cumulative part of Cause No. 3437. If relator was dissatisfied with the cumulative portion of his sentence, he should have made such known in the appeal of Cause No. 3437. The judgment therein is not void, but only voidable at most, and the writ of habeas corpus cannot be made to again serve him as an appeal from No. 3437.

In Ex Parte Crawford, 36 Tex.Crim. R., 36 S.W. 192, it is said: "If he was dissatisfied with the entry as made in the sentence cumulating his punishment, he had his right of appeal in order to have the same corrected. The entry of cumulative punishments in the final judgment and sentence certainly cannot be treated as void, and, not being void, he cannot avail himself of the remedy by habeas corpus. See Church, Hab. Corp. secs. 365, 365a, 365b; Ex Parte Dickerson, 30 Tex. App. 448[30 Tex. Crim. 448]; Ex Parte Wilson, 114 U.S. 417."

Again, in Ex Parte Cox, 29 Tex. App. 84[29 Tex. Crim. 84],14 S.W. 396, the following cumulative clause was held to be sufficient: " 'It is further considered, ordered, and adjudged that the punishment herein adjudged against the said defendant, Charles Cox, shall begin when the said judgment on the preceding conviction in cause No. 1,729 shall have ceased to operate, as well as all other judgments of conviction preceding said No. 1,729, so that no judgment of conviction preceding or following this judgment shall conflict with the penalty herein operative, so that each penalty will have its distinct, separate time allotted to it.'"

In construing such cumulative phrase, this court said: "But again, it is insisted that the judgment as amended is not sufficiently specific in terms to inflict cumulative punishment. It is insisted that to render the cumulative clause sufficient it should contain a description of the preceding judgment; should state the time defendant was convicted in the preceding case, the offense of which he was convicted, the punishment, and the court in which he was convicted. There can be no question but that such specific and definite recitals would be much more satisfactory, and the approved form for such judgments contains them. Willson, Crim. Forms, No. 787. We think, however, that in this instance the cumulative punishment imposed by the amendment complained of is substantially and sufficiently specific to authorize the punishment. (Ex Parte Cox, supra.)

Again, in King alias Wingate v. State, 32 Tex.Crim. R.,24 S.W. 514, this court said: "The court, in passing sentence upon defendant in this case, said to him, 'this sentence will begin at the expiration of the sentence which you, the defendant are now serving out.' This was objected to because there was no evidence introduced showing that he had been convicted of another crime. In the absence of proof to the contrary in this connection, we presume the court was performing its duty as required by article 800 of the Code of Criminal Procedure, in regard to cumulative sentences. But if, in fact, he was not convicted of the former offense, we are at a loss to know how this remark could injure defendant."

Article 774, C. C. P., under which the cumulation was had in the present instance, reads as follows: "When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."

The majority of the Court are under the impression that the cumulative sentence correctly follows the statute and that the "preceding conviction" refers to No. 3436; that same is sufficient in law to allow the authorities at the penal institution to correctly interpret same; and that the attack thereon comes too late.

Believing that this cause was correctly affirmed, the motion for rehearing is overruled.