
    Ex parte SIMS.
    No. 26591.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1953.
    Smith & Porter, Longview, for appellant.
    Wesley Dice, State’s Atty., of Austin, for the State.
   GRAVES, Presiding Judge.

It appears from the record tha,t the relator, William Roland Sims, is confined in the state penitentiary, having been convicted in four different cases. Three of such cases arose in Gregg County, Texas, and the fourth case arose in Upshur County, Texas,, after the conviction of the three cases in Gregg County. In each of such cases in Gregg County the appellant was sentenced to serve not less than two nor more than three years in the state penitentiary. One of said cases, to-wit, No. 2123-B, was made cumulative of the prior sentence in No. 2122-B. After said three convictions in Gregg County, the appellant was convicted of a further offense in Upshur County in. Cause No. 6490, and sentenced to a term of two years in the state penitentiary with a further cumulative sentence, as follows: “This sentence is to be cumulative of Defendant’s conviction for cattle theft in Gregg County.” There is no further identification of the conviction in Gregg County. It is also shown by the record of the Texas Prison System that the appellant has served nine years and ten days relative to these sentences in such counties.

The sentence in Upshur County is not properly made cumulative of any of the sentences in Gregg County, so the same is treated merely as a straight sentence for a term of two years with no cumulation portion attached.

Under the facts presented to us the appellant has served his time and is entitled to his discharge from the state penitentiary. The State’s Attorney confesses error in the matter, and we think that Ex parte Johnson, 153 Tex.Cr.R. 114, 218 S.W.2d 200, is' authority to the effect that the attempted cu-mulation of the sentence out of Upshur County is void and of no effect.

The relator is therefore ordered discharged from his present confinement.  