Ex Parte Herring

271 S.W.2d 657 (1954)

Ex parte Ernest HERRING.

No. 27260.

Court of Criminal Appeals of Texas.

October 13, 1954.

No attorney on appeal for appellant.

Wesley Dice, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Relator is confined in the penitentiary having been convicted of several felonies. A previous application for release was denied by this court in Ex parte Herring, 156 Tex.Cr.R. 624, 245 S.W.2d 705.

One of the convictions against relator is a sentence dated October 28, 1939, in Cause No. 47,672 in Criminal District Court No. 2 of Harris County, for a term of not less than five nor more than twenty-five years.

Application for habeas corpus was presented to Hon. Langston King, Judge of Criminal District Court No. 2 of Harris County, who presided at the trial in 1939, and after hearing, the writ was granted and made returnable before this court in accordance with Art. 119, V.A.C.C.P.

Judge King correctly construed the twenty-five year sentence above mentioned as running concurrently with other sentences against relator.

We overrule the contention that relator was entitled to credit on this sentence for time served prior to its pronouncement on October 23, 1939.

This court is not authorized to enter a declaratory judgment, but only to inquire into the legality of the confinement or restraint of the prisoner. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

When relator can show that he has credit from and after the date of the twenty-five year sentence sufficient to satisfy it as a concurrent sentence he may seek relief against further incarceration.

The relief prayed for is denied.