A motion for rehearing has been filed in this case, and in it is a question raised not heretofore presented to the court. It appears that appellant was convicted in cause No. 120, in the District Court of Motley County, of the cause of theft, from which judgment he prosecuted an appeal to this court. While that case was pending on appeal in this court, appellant was tried in this case, and convicted. In passing sentence on appellant in this case, the court ordered that in case the judgment in cause No. 120 was affirmed by this court, then this sentence should not begin until the expiration of the sentence in that case. Before the adoption of article 840 in the Code of Criminal Procedure it was held that there was no authority to fix the commencement of a term in the penitentiary at the expiration of another term for which the penalty had theretofore been condemned. Prince v. State, 44 Tex. 480; Hannahan v. State, 7 Texas Crim. App., 664; Baker v. State, 11 Texas Crim. App., 262. Therefore, we must look to that article of the Code to cumulate sentences, and by turning to it we find that it is only after a final conviction that one term of imprisonment can be made to begin at the expiration of the other. The first case, at the time of this trial, being on appeal and pending in this court, the judgment had not become final, and therefore the court was without authority to order this sentence to begin at the expiration of the first sentence in case we affirmed it, and the sentence is here and now corrected and reformed and that portion of the sentence which seeks to cumulate the penalty is stricken from the sentence. As by striking out this paragraph (the third) of the sentence it will be in the customary form of sentence and the sentence is so reformed that said paragraph shall have no application, and the sentence shall begin as if no other trial had been had, and it is so reformed.
Motion for rehearing overruled, sentence being reformed.
Overruled. *Page 9