Opinion
No. 31055.
October 14, 1959.
Porter, Madalinski Mondin, by Wm. M. Porter, San Antonio, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an original application for writ of habeas corpus brought by relator seeking his release from the Texas Prison System.
The record shows that relator plead guilty in both Hidalgo and Live Oak Counties to felonies and that he has served such sentences. Soon thereafter, he plead guilty in Nueces County in Cause No. 8939 and was sentenced in said cause. The trial court attempted to cumulate the Nueces County sentence with those from Hidalgo and Live Oak Counties with the following order:
"It is further ordered by the Court that the sentence herein shall be cumulative of and in addition to sentences heretofore imposed on this defendant in Hidalgo and Live Oak Counties, and the sentence herein shall begin to run upon the expiration of said sentences in Hidalgo and Live Oak Counties."
Ex parte Merritt, 159 Tex.Crim. R., 261 S.W.2d 596, is here deemed controlling. There, we held that an order which read, 'It is further ordered by the Court that this sentence be cumulative to that pronounced on the defendant in the District Court of Terry County, Texas, and being now served by the defendant,' insufficient to effect cumulation. Reference is here made to the authorities discussed in Merritt.
Relator is entitled to be discharged, and it is so ordered.