Opinion
No. 40476.
May 24, 1967.
Will Gray, Houston, for petitioner.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
This is an original Habeas Corpus proceeding by an inmate of the Texas Department of Corrections seeking release from further confinement under cumulated sentences pronounced January 1, 1949, for the maximum of 25 years.
The petitioner has credit for more than 20 years on such sentences. His present confinement is under a 5 year sentence in Cause No. 60850 in Criminal District Court No. 2 of Harris County which contains the provision 'Sentence cumulative with No. 60851, as to the defendant Charles Wilkinson * * *.'
The conviction in Cause No. 60851 was not in the same court, but was in Criminal District Court of Harris County.
The sentence not having been imposed in the same court, the cumulative provision by reference to number only is ineffective.
The 5 year sentence having been served concurrently with the validity cumulated 10 year sentences, petitioner is entitled to release. Ex parte Lewis, Tex.Cr.App., 414 S.W.2d 682; Ex parte McClain, 158 Tex.Crim. R., 253 S.W.2d 863; Ex parte Whitley, 171 Tex.Crim. R., 347 S.W.2d 721; Ex parte Hamilton, 163 Tex.Crim. R., 290 S.W.2d 673; Ex parte Lucas, 161 Tex.Crim. 144, 275 S.W.2d 816; Ex parte Snow, 151 Tex.Crim. 640, 209 S.W.2d 931.
The petition for writ of habeas corpus is granted and petitioner is ordered released from further custody under the 5 year sentence in Cause No. 60850 in Criminal District Court No. 2 of Harris County.