Ex Parte San Migel

973 S.W.2d 310, 1998 Tex. Crim. App. LEXIS 91, 1998 WL 375804

• Court: Court of Criminal Appeals of Texas
• Decided: July 8, 1998
• Docket: 72950
• Status: Published

Opinions

OPINION

HOLLAND, Judge,

delivered the opinion of the Court, in which

MeCORMICK, Presiding Judge, and MANSFIELD, KELLER, PRICE and WOMACK, Judges, joined.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of burglary of a building. Punishment was assessed at ten years imprisonment. No appeal was taken from this conviction.

Applicant contends the cumulation order in the instant ease is void as it recites only the name of the county of the prior conviction. Applicant is correct that the cumulation order contained in the judgment clearly recites only the name of the county of the prior conviction.¹ This Court has previously held that a cumulation' order which recites only the cause number and county of a prior conviction is invalid when the prior conviction is from a different county. Ex parte Ashe, 641 S.W.2d 243 (Tex.Crim.App.1982). Prior to our decision in Ashe, we had examined similar issues in several other opinions. In Bland v. State, 145 Tex.Crim. 267, 167 S.W.2d 761 (Tex.Crim.App.1943), the cumulation order was “ineffective” because it did not contain sufficient information to ascertain upon which prior sentence the conviction was stacked.² Subsequent to the opinion in Bland, the Court held that a cumulation order was sufficient when it stated the sentence was to begin at the expiration of a sentence previously pronounced on that same date and by the same district court. Ex parte Snow, 151 Tex.Crim. 640, 209 S.W.2d 931 (Tex.Crim.App.1948). In Ex parte Lewis, 414 S.W.2d 682 (Tex.Crim.App.1967), this Court held that a cumulation order referring only to the previous conviction’s cause number is sufficient when the trial court entering the order is the same court which heard the prior cause. Additionally, in Phillips v. State, 488 S.W.2d 97 (Tex.Crim.App.1972), we specified that a cumulation order should contain:

1. The cause number of the prior conviction;

2. The correct name of the court in which the prior conviction occurred;

3. The date of the prior conviction; and

4. The term of years assessed in the prior case.

However, in what appeared to be a retreat from the suggested requirements set out in Phillips, the Court held the aforementioned requirements are not absolutes and a cumulation order not setting out all of the requirements may, in some circumstances, be valid. Ex parte Davis, 506 S.W.2d 882 (Tex.Crim.App.1974). A valid cumulation order should be sufficiently specific to allow the Texas Department of Criminal Justice—Institutional Division (TDCJ — ID), to identify the prior with which the newer conviction is cumulated. Ward v. State, 523 S.W.2d 681 (Tex.Crim.App.1975).

It is not sufficient for a habeas petition to allege the denial of a fair and impartial trial or due process of law, which are mere conclusions of law. Ex parte Maldonado, 688 S.W.2d 114 (Tex.Crim.App.1985). Rather, the applicant must show that the cumulation order was not sufficiently specific and he was harmed by this lack'of specificity. Therefore, we hold that an applicant must show the TDCJ-ID is not properly cumulating his sentences in order for a cumulation order to be found void. Our previous eases which hold to the contraiy are overruled.

Applicant does not contend that he has been harmed by a lack of specificity in his cumulation order. Indeed, according to the application, the TDCJ-ID is cumulating Applicant’s sentence on the correct Williamson County conviction.³ Applicant has not shown how he was illegally confined by the wording of the cumulation order in the instant case.

Relief is denied.

BAIRD, J., filed a dissenting opinion, in which OVERSTREET and MEYERS, JJ., joined.

1 . The cumulation order on Applicant’s judgment contains the following language: "Consecutive to Cause Number from Williamson County case.”

2 . In Bland, the judgment 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. This included two cases which were referred to by number from that county.

3 . The Applicant has not shown that there exists another Williamson County conviction upon which this sentence could be stacked.