Ex Parte Whitley

Court of Criminal Appeals of Texas

Ex Parte Whitley

347 S.W.2d 721, 171 Tex. Crim. 280, 1961 Tex. Crim. App. LEXIS 4430

CourtCourt of Criminal Appeals of Texas

DecidedJune 24, 1961

Docket33740

StatusPublished

Cited by4 cases

This text of 347 S.W.2d 721 (Ex Parte Whitley) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Whitley, 347 S.W.2d 721, 171 Tex. Crim. 280, 1961 Tex. Crim. App. LEXIS 4430 (Tex. 1961).

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Opinion

*281 MORRISON, Judge.

This is an original application for writ of habeas corpus brought by relator seeking his release from the Texas Prison System.

From the record before us, it appears that on November 5, 1947, relator plead guilty to indictments in causes numbered 9106, 9109 and 9110 in the district court for the 5th Judicial District in Bowie County. He was sentenced to twelve years in each case, and no effort was made to cumulate such sentences, and relator does not question their validity since he now has credit for more than eighteen years. Thereafter, on June 10, 1954, relator plead guilty in causes numbered 6492, 6498, 6494, 6495, 6496 and 6497 in the district court for the 29th Judicial District in Erath County. He was sentenced to twelve years in each of said causes. No effort was made to cumulate any of these sentences. We do find, however, in the sentence in Cause No. 6495 the following notation: “This Sentence to run concurrent with Cause Nos. 6492, 6493, 6494, and 6496, 6497 from Erath County, and to begin and run after sentences in Cause Nos. 9106, 9109, and 9110 from Bowie County, Texas.” A similar order is contained in the other sentences.

In Ex parte Hamilton, 163 Tex. Cr. Rep. 282, 290 S.W. 2d 673, we took occasion to point out the four recommended elements to be contained in an order of cumulation. Number two reads, “The correct name of the Court in which the prior conviction was had.” We said that when we took judicial knowledge of the fact that there was more than one district court in both Smith and Tom Green Counties an order which merely referred to the district court of said counties without further designation was insufficient.

Ex parte Lucas, 161 Tex. Cr. Rep. 144, 275 S.W. 2d 816, is on all fours with the case at bar and authorizes a holding that the above order of cumulation was insufficient. See also Ann. 67 A.L.R. 2d 1437.

Since relator has served all the sentences validly imposed upon him, he is ordered discharged.

It is so ordered.

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*281 MORRISON, Judge.

This is an original application for writ of habeas corpus brought by relator seeking his release from the Texas Prison System.

From the record before us, it appears that on November 5, 1947, relator plead guilty to indictments in causes numbered 9106, 9109 and 9110 in the district court for the 5th Judicial District in Bowie County. He was sentenced to twelve years in each case, and no effort was made to cumulate such sentences, and relator does not question their validity since he now has credit for more than eighteen years. Thereafter, on June 10, 1954, relator plead guilty in causes numbered 6492, 6498, 6494, 6495, 6496 and 6497 in the district court for the 29th Judicial District in Erath County. He was sentenced to twelve years in each of said causes. No effort was made to cumulate any of these sentences. We do find, however, in the sentence in Cause No. 6495 the following notation: “This Sentence to run concurrent with Cause Nos. 6492, 6493, 6494, and 6496, 6497 from Erath County, and to begin and run after sentences in Cause Nos. 9106, 9109, and 9110 from Bowie County, Texas.” A similar order is contained in the other sentences.

In Ex parte Hamilton, 163 Tex. Cr. Rep. 282, 290 S.W. 2d 673, we took occasion to point out the four recommended elements to be contained in an order of cumulation. Number two reads, “The correct name of the Court in which the prior conviction was had.” We said that when we took judicial knowledge of the fact that there was more than one district court in both Smith and Tom Green Counties an order which merely referred to the district court of said counties without further designation was insufficient.

Ex parte Lucas, 161 Tex. Cr. Rep. 144, 275 S.W. 2d 816, is on all fours with the case at bar and authorizes a holding that the above order of cumulation was insufficient. See also Ann. 67 A.L.R. 2d 1437.

Since relator has served all the sentences validly imposed upon him, he is ordered discharged.

It is so ordered.

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347 S.W.2d 721, 171 Tex. Crim. 280, 1961 Tex. Crim. App. LEXIS 4430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-whitley-texcrimapp-1961.

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