*1 Billy Earl BAZEMORE. No. 41411. Appeals of Texas.
Court 19, 1968.
June July
Rehearing Denied Austin, Martin, Cowden, for
Roy Y. Tom relator. Barber, Atty., T. Dist. San
Wallace Marcos, Atty., Douglas, B. Leon State’s Austin, for State.
BELCHER, Judge. application This is an writ habeas corpus under Art. Ann. 11.07 Vernon’s C.C.P., by brought seeking relator his re- lease from Texas of Cor- rections. relator contends that he illegally ground confined on the virtue of cumulating sentences he is confined is insufficient. 27, 1962, September On the relator was burglary convicted of in Cause No. in the Criminal District Court of punishment and his at was assessed years. nine The Criminal District County was created begin and established to September, it continued until designated as created the 147th in 1963. On March the relator was con- burglary victed of 4111 in the No. Cause District Court of punishment years assessed at three judgment provisions. contains cumulative The order of cumulation as reads follows: “The sentence in the to begin case after Billy the said Earl Basemore shall against served the time assessed him Cause on the Docket *2 206 Collier, County, parte 156 applicant herein. Ex of Travis
of the District Court
377,
177.
a final con-
243 S.W.2d
Texas which said cause was
Tex.Cr.R.
felony,
Burglary.”
a
a
viction of
to-wit:
The
law of the dis
conclusions of
unlawfully
petitioner is now
judge
the Criminal
The 1957 statute
Ex
binding on this court.
County provided
confined is not
District Court of Travis
parte
Tex.Cr.App.,
S.W.2d
Young,
418
“that
criminal
transferred
no
case shall be
824;
Tex.Cr.App.,
parte
Ex
any
Carpenter,
the
to
of
from
Criminal District Court
County, nor
425
the district courts
Travis
S.W.2d 821.
of
any civil
transferred from
shall
case be
corpus is
petition
The
for writ of habeas
any
District
district
to the
court
Criminal
denied.
Court herein created.”
provided that
statute
1957
further
DISSENTING
judges
the
after its effective date the
of
ONION, Judge.
53rd,
of
and 126th District Courts
duty
County
the
Travis
shall be relieved of
Ap
years
Court of Criminal
For
now the
and the district
impanelling grand juries,
of
peals
judges
trial
to incor
has admonished
clerk
transfer all
criminal cases
shall
the
full
porate
cumulative sentences a
in their
pending
the three
numbered courts
above
the
description
prior
the
conviction
Travis
to the Criminal District
Court
Lewis, Tex.
accuracy.
parte
Ex
interest
County;
process,
that all
bail bonds
Collier,
682;
parte
Cr.App., 414
Ex
S.W.2d
recognizances
origi-
the
if
shall be
same as
177; Ex
377, 243 S.W.2d
Tex.Cr.R.
156
nally
the
made returnable to
said Criminal
Robbins,
44, 253 S.W.
parte
158 Tex.Cr.R.
Court;
jury
grand
District
and a
shall
2d 53.
impanelled by the Criminal District Court
283,
Hamilton,
parte
163Tex.Cr.R.
Ex
required
in the same manner as is now
673,
pointed
that an
out
290
the
S.W.2d
law in
district courts.
give
order of cumulation should
ques-
We are not here concerned
the
(a)
prior
the
number of
the
district
tion of
of other
County
courts Travis
under
constitu-
(b) the correct name
the court
According
(Art.
tion.
to
statute
which the
conviction was had
V.A.C.C.P.) the
District
Court
conviction,
(c)
the date
County
only
in Travis
was the
County trying criminal
in 1962.
cases
years
(d) the term
assessed in
the reference in
4111
Therefore,
Cause No.
prior case.
County,
the District Court
Comal
Richmond,
parte
Ex
See also
163Tex.Cr.R.
the criminal docket of
Cause No.
909;
parte Cox,
290
29
S.W.2d
could
Tex.App.
14 S.W.
only
been
the docket
at
of Travis
which
Court
Despite
specific
the lack of some of
time of
cumulation order was
recommended,
recitals
and definite
County.
147th District
Court
upheld cumulated sentences
Court has
sufficiently
substantially
were
re
meets the
The cumulation order
sought
specific
punishment
to authorize
quirements
and is
of definiteness
sufficient
imposed.
to be
re
purpose without
on its face to effect its
parte Shields, Tex.Cr.App.,
and to con
In Ex
371
sort to evidence
aid thereof
dear
an
cumulation con-
vey
Corrections
S.W.2d
order of
cause,
date,
taining
the number
unequivocal
of the District
long
detain
and name of
court was held sufficient.
how
420; Ex
lough, Tex.Cr.App., 416 S.W.2d
cumulation
it was observed
In Shields
Miller,
parte
168 Tex.Cr.R.
when such
held valid
had been
orders
three,
Clark, Tex.Cr.App., 375
than
Cf.
two, rather
contained
orders
conviction,
Ex S.W.2d 442.
citing
details of
Daffern,
286 S.W.
162 Tex.Cr.R.
judicial knowledge
certainly
can
take
We
*3
29,
151;
Dyess,
Tex.Cr.R.
parte
Ex
161
2d
than
dis-
that
has more
one
Bell,
695;
Tex.
parte
160
274
Ex
S.W.2d
have
the
rule
court and
above
would
530;
parte Col
490,
Ex
Cr.R.
272 S.W.2d
majority
application except, as the
full
Pruitt, Tex.
lier,
parte
supra.
Ex
See also
concludes,
provisions
Article
the
Isom,
384;
parte
Ex
Cr.App., 385 S.W.2d
1957,
Leg.,
(Acts
V.A.C.C.P.
434,
753.
168 Tex.Cr.R.
331 S.W.2d
721,
the Criminal
299) creating
P.
ch.
County. Such
upheld cumulation
This Court has even
statute,
course,
the
effect at
was not in
only to
although reference is made
orders
question,
time
cumulation order
the order
previous
number where
cause
nothing
the face
such cumulation
day
the same
in the
court and on
same
even in
that the statute was
order indicates
it
made cumu-
which was
as
sentence to
effect at the time of the
parte Ogletree, 168 Tex.Cr.R.
lative. Ex
referred to.
Lee,
446;
161
429,
parte
Ex
328 S.W.2d
398,
jurisdiction criminal over both civil and jurisdiction, their criminal constitutional matters the Constitution as authorized no, there not have been was could state) be deemed and the laws of this can any, mandatory duty part on the jurisdiction affect the constitutional cases in district clerk to docket all criminal Courts, 53rd, 98th and 126th District County felony Travis of the on grade fact, contrary appears. docket of the District Court Now can it said that while the 1957 county or transfer cases to that 52-61a, supra, was version of Article Clayton, supra. court. See Lord v. effect, 53rd, deprive it acted to (now Articles 584 and 585 33.07 and juris- 126th District criminal Courts of time, 33.08) V.A.C.C.P., in effect at the I think diction? not. having called each court of record reading A the above cited authorities criminal have a criminal clearly any contention that forecloses kept by docket the clerk. County District Court Travis my opinion, 53rd, In jurisdiction, had exclusive while the 1957 98th and 126th supra, only 52-61a, County Article District Courts not version of Originally Pro Article date of the of Criminal codified in 1963 as 1965 Code 199-147, supra, since the effective cedure as Article V.A.C.S. a cer- juris- Since we have been furnished criminal retained their constitutional diction, to tificate the Texas of Cor- required by law but were also petitioner showing that keep rections criminal dockets. are not the sentences entitled to release if Therefore, ma- agree I with the cannot cumulative, sought. grant I the relief would jority’s in Cause conclusion that reference stated, agree I with the the reasons 4111 in the 22nd District Court For herein, respect- and must judge able trial to Cause No. fully criminal the District Court dissent. docket of only Travis could have been to
docket of the Criminal District Court MORRISON, J., joins in dissent. County. My opinion reinforced when it is considered that the 1957 version 52-61a, supra, in effect
of Article was not question
at the time of cumulation in
nothing on the face the cumulation was even indicates statute
effect at the time
referred to. Leroy GARDNER. dealing cumulation orders of *5 No. 41412. frequently we have pointed that a out Appeals of Texas. of Criminal judgment sentence is a final and should purpose on its June its sufficient face effect , without resort to evidence aid thereof. Rehearing July Denied parte Lewis, Collier, supra; supra. Austin, Martin, Roy Cowden, Y. Tom for relator.
This, then, applied is the test to be in determining the Barber, effectiveness of the cumu- Atty., Mar- Wallace T. Dist. San question. lation order to cos, We do not look Douglas, Atty., and Leon B. State’s extrinsic evidence in Austin, aid of order. for the State. question
The cumulation order in does conviction,
not contain the date years assessed,
nor the term nor cor- BELCHER, Judge. rect name court in which had, in- conviction was and is therefore application of habeas This an for writ sufficient. corpus under Art. 11.07 Ann.C.C. Vernon’s P., brought by seeking relator release his vary formally going If we are test from the Texas of Corrections. pass sufficiency upon used to illegally The relator that he is con- contends cumulation and allow extrinsic evidence on the ground that the order cumulat- fined e., thereof, copy i. a certified aid ing he is by the sentences virtue of 33,850, judgment sentence Cause No. confined is insufficient. there is then should be observed nothing in this record show companion This is a case to Ex petitioner the one and Bazemore herein is Bazemore, 41,411, 205 No. this the same Bazemore convicted Cause day decided. as indicated the cumulation order. Nevertheless, beginning ground presented by majority at the sole of error appellant opinion of their assumes the same as that fact considered in denying petition conviction. for writ