ON "state’s motion for rehearing.
MORROW, Presiding Judge.Preliminary to stating the conclusions with reference to the present appeal, we condense the facts which are found in the original opinion. On January 20, 1932, appellant was convicted of robbery in cause No. 3398, in which a penalty was assessed against him of confinement in the penitentiary for five years. He had been previously convicted of robbery in another case, No. 3334, with a like penalty as that in the present appeal. On February 12, 1932, appellant was sentenced in the trial court by a verbal statement of the trial judge, a memorandum of which appeared on the court’s docket as follows:
“2/12/32. Defendant sentenced to confinement in the penitentiary for a term of five years to be cumulative of sentence in cause No. -as provided by law.”
The sentence, as carried into the minutes, made no mention of its cumulative effect, and made no mention of any other conviction of the appellant. From the sentence as entered, appellant appealed the present case to the Court of Criminal Appeals. On May 12, 1932, the appeal in cause No. 3398 was filed in this court and subsequently, on June 24, 1932, was dismissed at the request of appellant. The mandate of this court was issued and forwarded to the trial court on June 28, 1932, whereupon appellant was sent to the penitentiary where he has since remained with the exception of the time spent in attending the hearing resulting in the present appeal. He was taken from the penitentiary and brought to San Angelo by virtue of a bench warrant dated November 17, 1932, for the purpose of attending the hearing mentioned. While appellant was serving the sentence, the trial court, on November 22, 1932, entered an order correcting the sentence against the appellant as recorded, so as to make it show that his sentence in cause No. 3398 was to be served after the expiration of his sentence in cause No. 3334. Appellant resisted the entry of the corrected sentence upon various grounds, as appears from the opinion rendered in this court in the present appeal on June 7, 1933.
Referring to the case of Bennett v. State, 80 Texas Crim. Rep., 652, the state advances the thought that the appellant having a right to appeal from the amended sentence, he is not in a position to complain of the entry of such sentence. The ap*518peal in the Bennett ease was dismissed for the reason that his recognizance was defective. After the appeal was dismissed, the sentence against him was amended. He prosecuted his appeal from the amended sentence. The effort of the state to have the last-mentioned appeal dismissed was denied, the court holding in effect that Bennett had a right to appeal after the entry of the amended sentence. There is some difference between the facts in the Bennett case and those affecting the appellant, notably the outstanding fact that under the sentence before it was amended, the appellant had become a convict and had served a part of his sentence. It may be assumed that he had the right to appeal from the amended sentence. However, it does not follow that such right would deprive the appellant of the immunity which accrued under the law of the land by virtue of its incarcération and the service of his sentence before its amendment took place. Assuming, however, that appellant has the right to appeal from his conviction in the present case, we perceive nothing in the law which would compel him to do so. In other words, conceding for the sake of argument that he may appeal from the amended sentence in the present case, the facts did not deprive him of the right to resist its enforcement against him under all the circumstances, especially the fact that before the sentence was amended and his appeal dismissed, he became a convict and was in the act of serving his sentence in the penitentiary under the conviction in causes Nos. 3334 and 3398. Touching the effect of serving the sentence, as bearing upon the right of the state to change or amend the sentence against his will, the precedents cited in the original opinion are deemed conclusive. Without quoting them, they are enumerated as follows: Bishop’s New Cr. Proc., 2nd Ed., vol. 2, sec. 1298; Ex parte Lange (U. S. Sup. Ct.), 18 Wall., 163, 21 L. Ed., 872; 44 Amer. Law Rep. (Ann.) 1203, and other cases cited in the original opinion. See, also, Ex parte Carey, 64 S. W., 241, announcing that when the mandate of this court is issued, the sentence of the appellant begins to operate. In other words, appellant in the present instance became a prisoner under the conviction, and as stated above, he was transferred to the penitentiary where he remained for a long time before the sentence was amended. He is still in prison.
The case of Turner v. State, 116 Texas Crim. Rep., 154, 31 S. W. (2d) 809, and many precedents therein cited, are pertinent to the point that the procedure sought in this case is incompatible with the fundamental law of the land.
Confirmed in the view that in the original opinion the proper *519conclusion was reached and stated, we are constrained to overrule the motion for rehearing. It is so ordered.
Overruled.