Ex Parte Lawson

• Decision Date: 17 December 1924
• Docket Number: (No. 9051.)
• Citation: 266 S.W. 1101
• Parties: Ex parte LAWSON.
• Court: Texas Court of Criminal Appeals

Page 1101

266 S.W. 1101

Ex parte LAWSON.

(No. 9051.)

Court of Criminal Appeals of Texas.

December 17, 1924.

Appeal from District Court, Walker County; Carl T. Harper, Judge.

Habeas corpus proceeding by Ralph Lawson. From an order refusing to discharge him, relator appeals. Reversed, and relator released from custody.

Gates & Briggs, of Huntsville, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

This is an appeal from an order of the district judge refusing to discharge the relator in a habeas corpus proceeding.

We understand that on February 8, 1921, at El Paso, Tex., relator was convicted of an offense against the United States laws, and condemned to imprisonment in the federal prison for one year. While imprisoned under this judgment, and in custody of the officers of the United States, he was, on the 26th day of February, 1921, brought before the district court of the state of Texas in El Paso, and there, upon a plea of guilty, he was convicted of an offense against the laws of this state, and condemned to imprisonment in the state penitentiary for a period of five years. The sentence contains this language:

"It is the order of this court that the defendant * * * be delivered by the sheriff of El Paso county, Tex., immediately to the superintendent of the penitentiaries of the state of Texas, or other person legally authorized to receive such convicts, and the said Ralph Lawson shall be confined in said penitentiaries for five years in accordance with the provisions of the law governing the penitentiaries of said state."

Relator was at once redelivered to the United States authorities, and by them confined in prison for one year. Upon his release therefrom he was at large for about four months, when he was captured by the state authorities and incarcerated in the state penitentiary. No deduction from his sentence could accrue for the time that he was at large, but, if he be credited with the time that he was in the federal prison, the time that he has been in the state penitentiary, and the deduction for good behavior, to which he is entitled upon the agreed facts, the five-year period for which he was sentenced has come to an end.

Relator insists that his further incarceration under the judgment of the district court of El Paso, Tex., is unauthorized. In article 882, C. C. P., it is declared that:

"The term shall commence from the time of sentence, or, in case of appeal, from the time of the affirmance of the sentence."

In article 862, C. C. P., the power is conferred upon the district courts in which a conviction of imprisonment is entered to make it cumulative with a prior conviction by a declaration in the sentence; that is to say, to make the date of the beginning of the second conviction coincident with the ending of the first or previous conviction. It is by force of this statute that judgments of conviction can be made cumulative. Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262; Prince v. State, 44 Tex. 480. In the application of this statute it is not essential that the prior convictions be at the same term of court. Ex parte Moseley, 30 Tex. App. 338, 17 S. W. 418; nor in the same court, Miller v. State (Tex. Cr. App.) 44 S. W. 162. The failure to embrace in the second or subsequent sentence the order making it cumulative with the prior conviction leaves the several convictions concurrent. In Ex parte Davis, 71 Tex. Cr. 538, 160 S....