Ex parte Ferguson

367 S.W.2d 345, 1963 Tex. Crim. App. LEXIS 867

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 1963
• Docket: No. 34861
• Status: Published

Opinion

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking as excessive the sentence in Cause C-5125-J pronounced in Criminal District Court No. 3 of Dallas County on November 13, 1958.

Disposition of the petition has been delayed at appellant’s request to await his appeal from a nunc pro tunc proceeding to correct the judgment. Such appeal was this day decided and the judgment was affirmed. Ferguson v. State, Tex.Cr.App., 367 S.W.2d 695.

The indictment in the case charged the offense of robbery by assault, and the trial judge has certified to this Court that the petitioner, upon his plea of guilty, was found guilty of that offense and that the recitation in the judgment and sentence showing the offense to be assault with intent to commit robbery was the result of clerical error.

The record in the nunc pro tunc proceeding confirms the court’s certification.

The sentence, under these facts, is not excessive or void. See Ex parte Sisk, 167 Tex.Cr.R. 18, 317 S.W.2d 750, certiorari denied 361 U.S. 844, 80 S.Ct. 95, 4 L.Ed.2d 82; Johnston v. State, 168 Tex.Cr.R. 79, 323 S.W.2d 449.

The relief prayed for is denied.