Ex Parte Whiteside

• Decision Date: 14 May 1941
• Docket Number: No. 21562.,21562.
• Citation: 150 S.W.2d 1022
• Parties: Ex parte WHITESIDE.
• Court: Texas Court of Criminal Appeals

Page 1022

150 S.W.2d 1022

Ex parte WHITESIDE.

No. 21562.

Court of Criminal Appeals of Texas.

May 14, 1941.

Appeal from District Court, Walker County; Max M. Rogers, Judge.

Proceedings in the matter of ex parte Thomas F. Whiteside who sought to be released on writ of habeas corpus from state penitentiary. From an order remanding petitioner to custody of the penitentiary authorities, petitioner appeals.

Order affirmed.

Burns & Burns, of Huntsville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant, a convict in the state penitentiary, claiming that he had served the time assessed against him, sought by writ of habeas corpus before the district court of Walker County to obtain his release. From the order remanding him to the custody of the penitentiary authorities he appeals.

In 1930, appellant was convicted in the district court of Harris County of the offense of murder and his punishment assessed at twenty years confinement in the state penitentiary. He began serving that sentence and continued to so serve until 1933, when he was, by the then Governor of the state, granted a sixty-day furlough. At the time the furlough was granted he had served two years, nine months and four days of that sentence.

While at liberty on the furlough, appellant was tried and convicted upon his plea of guilty in the district court of Tarrant County of three felonies, one of which was for the offense of robbery, with a punishment of twenty years confinement in the state penitentiary assessed. The other two carrying lesser penalties were by the court expressly made to run concurrent with the robbery conviction, the effect of such order being that appellant's punishment was fixed at twenty years in the penitentiary in those cases. No reference was made to the Harris County sentence or the unserved portion thereof, of seventeen years, two months and twenty-six days.

Appellant re-entered the penitentiary to serve said remainder of the Harris County sentence and the new sentence imposed. Upon his re-entry the penitentiary authorities treated him as a new convict, assigning to him a new convict number, as serving the Tarrant County sentence. The unserved portion of the Harris County sentence, being less than that assessed in Tarrant County, was treated as being absorbed by the Tarrant County sentence inasmuch as both ran concurrently.

Appellant contends that the method employed by the penitentiary authorities was incorrect, and that he should have been treated as a returned furloughed convict, serving the unserved portion of the Harris County sentence together with the Tarrant County sentence, and that for the purposes of commutation under the statute (Art. 6166v R.C.S., Vernon's Ann.Civ.St. art. 6166v), he should have been treated as a convict serving twenty-two years, nine months and four days, dating from the time he began serving the Harris County sentence, as one continuous sentence.

The undisputed facts show that if appellant's contention be correct he has, by reason of credit for commutation and over time earned, served the time required and is entitled to his discharge. If the method employed by the penitentiary authorities be correct, he has not served the sentence.

Appellant relies chiefly to support his contention upon that part of Article 6166v, Vernon's Revised Civil Statutes, which reads as follows: "A prisoner under two or more cumulative sentences shall be allowed commutation as if they were all one sentence."

To invoke this statute, of necessity, the two sentences must be cumulative. We are unable to agree that they should be so construed. Article 774, C.C.P.,...