50 S.W. 348


BULLARD
v.
STATE.


Court of Criminal Appeals of Texas.


March 1, 1899.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Tom Bullard was convicted of theft, and he appeals. Reformed.

A. A. Kemble, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was tried and convicted of the theft of one horse, the property of J. A. Nesmith, 
and upon that conviction an ordinary judgment was rendered against appellant on the verdict 
of the jury, assessing his punishment at confinement in the penitentiary for a term of seven 
years. Upon that judgment the following sentence was rendered, to wit: "This day, this cause 
again being called, the state appeared by her county attorney, and the defendant, Tom Bullard, 
was brought into open court, in person, in charge of the sheriff, for the purpose of having 
the sentence of the law pronounced in accordance with the verdict and the judgment herein 
rendered and entered against him on a former day of this term. And thereupon the defendant, 
Tom Bullard, was asked by the court whether he had anything to say why said sentence should 
not be pronounced against him, and he answered nothing in bar thereof; and it appearing to 
the court that said Tom Bullard is now serving a term in the state penitentiary for the 
commission of some felony, whereupon the court proceeded in the presence of the said defendant, 
Tom Bullard, to pronounce sentence against him as follows: `It is ordered by the court that 
the defendant, Tom Bullard, who has been adjudged to be guilty of horse theft, and whose 
punishment has been assessed by the verdict of the jury at confinement in the penitentiary 
for seven years, be delivered by the sheriff of Ellis county, Texas, immediately to the 
superintendent of the penitentiary of the state of Texas, or other person legally authorized 
to receive such convicts, and the said Tom Bullard shall be confined in said penitentiary 
for seven years, in accordance with the provisions of the law governing the penitentiaries 
of said state. Said sentence to commence at the expiration of the term or terms for which 
he now is serving in said penitentiary. And the said Tom Bullard is remanded to jail until 
said sheriff can obey the directions of this sentence,'—to which sentence of the court, in 
so far as it makes the term of imprisonment to begin at the expiration of some other term 
or terms or at any future day, the defendant excepts, and in open court gives notice of 
appeal to the court of criminal appeals of Texas." Appellant excepted to that portion of the 
sentence which attempted to make the punishment

Page 349

of appellant cumulative, and his assignment of error in that regard is as follows: "The 
court erred in the sentence of Tom Bullard in that the sentence directs that his term of 
confinement in the penitentiary shall commence at the expiration of the term or terms for 
which he is now serving in said penitentiary." And in this connection appellant complains 
of the action of the court making the sentence cumulative, because there is no evidence 
introduced before the court authorizing a sentence to be made cumulative. From an 
inspection of the facts as contained in the record, we hold that this contention is correct. 
The only evidence disclosed by the record that appellant was then in the penitentiary from 
Freestone county was the evidence of appellant himself, and the bench warrant to G. C. 
Sweet, sheriff of Ellis county, upon which appellant was brought from the state 
penitentiary to Ellis county on the trial of this case; and further proof was made that 
the sheriff went to the penitentiary, and brought appellant to Ellis county. There was 
no record presented of his conviction, nor was the court furnished any data as to whether 
he was serving a term in one or more cases in the penitentiary, or the length of said 
terms, or how much longer he had to serve. It will be seen from the record of the sentence 
itself in this case that the court nowhere stated in general terms that the sentence in the 
case should begin when his sentence or sentences which he was then serving in the 
penitentiary should teminate. We hold that, unless record evidence of former convictions of 
the defendant is introduced, together with oral evidence of his identity, unless the 
convictions occurred at the same term that the appellant is tried, the court will not be 
authorized to make the sentence cumulative. Article 904 of the Code of Criminal Procedure 
reads: "The court of criminal appeals may affirm the judgment of the court below, or may 
reverse and remand for new trial, or may reverse and dismiss the case, or may reform and 
correct the judgment as the law and evidence of the case may require." The sentence in 
this case is in strict conformity to the verdict and judgment save and except in the 
particular above indicated, wherein the court proposed to make the sentence in this instance 
cumulative. The court very properly sentenced appellant to seven years' confinement in the 
penitentiary, as indicated by said verdict and judgment. But, under the law and evidence 
adduced upon this question, there was no authority before the court authorizing the court 
to make the sentence cumulative. As before stated, there was no evidence to authorize such 
action on the part of the court. Under the article above quoted, therefore, we here 
reform the judgment, and it is ordered by the court that appellant, Tom Bullard, who 
has been adjudged to be guilty of horse theft, and whose punishment has been assessed 
by the verdict of the jury at confinement in the penitentiary for seven years, be 
delivered by the sheriff of Ellis county, Tex., to the superintendent of the 
penitentiary of the state of Texas, or other person legally authorized to receive 
such convict; and the said Tom Bullard shall be confined in said penitentiary for 
seven years in accordance with the provisions of the law governing the penitentiaries 
of this state, and that his sentence shall not be dependent upon any other sentence 
that may or may not have been rendered against appellant in any other trial.

This case is different from the case of Small v. State (Tex. Cr. App.) 38 S. W. 799. 
In that case the indictment contained three counts,— two for forgery, and one for 
attempting to pass as true a forged instrument in writing. The verdict found defendant 
guilty of the latter offense, but the judgment was entered and sentence passed against 
him for forgery. The court in that case held the action of the court was the same as if 
no judgment and sentence at all had been passed upon defendant, and, there being no 
judgment, that there is nothing to reform. But in this case the court did sentence 
appellant in accordance with the verdict and judgment, but added a clause making 
the sentence cumulative. Hence we hold that the doctrine in the Small Case does not 
apply in this case, and we can reform the judgment as above indicated. For the 
reasons assigned, the sentence of the lower court is reformed as above indicated, 
and the judgment is affirmed.

        DAVIDSON, P. J., absent.