Ex Parte Ferrell

406 S.W.2d 440, 1966 Tex. Crim. App. LEXIS 988

• Court: Court of Criminal Appeals of Texas
• Decided: June 22, 1966
• Docket: 39724
• Status: Published

Opinions

OPINION

MORRISON, Judge.

This is an original application for writ of habeas corpus wherein relator seeks to have this Court order that he be given credit upon his resentence on February 4, 1966, for the time he has been confined under a sentence imposed on March 19, 1953, which sentence was declared void by the United States District Court for the Eastern District of Texas.

Relator was originally sentenced to life imprisonment in Cause No. 67,984 on March 19, 1953, which was affirmed by this Court and reported in Tex.Cr.App., 261 S.W.2d 564. Thereafter, the United States District Court for the Eastern District of Texas granted relator’s application for writ of habeas corpus on the ground that his attorney was not present at the time relator was sentenced in Cause No. 67,984, there being no showing that relator intelligently waived such right. The judgment of the Federal District Court entered on December 16, 1964, ordered that relator be released from the custody of the Texas Department of Corrections if he had not been re-sentenced in Cause No. 67,984 in the Criminal District Court of Harris County, Texas, within thirty days from the date thereof, his attorney being present in court at the time of sentencing.

Pursuant to this order and in compliance therewith, relator, his counsel being present, was re-sentenced on January 11, 1965, to life imprisonment in the state penitentiary by the Criminal District Court of Harris County, Texas. Appeal therefrom was perfected to this Court; the judgment of the trial court was reformed to provide for relator’s confinement for a term of ten years. As reformed, the judgment was affirmed. Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86.

During the pendency of the appeal, relator filed an original application for writ of habeas corpus in this Court alleging that he was entitled to be discharged from custody because the “re-sentencing was a nullity.” This application was denied on January 3, 1966, by written order wherein it was stated “Petition for writ of habeas corpus is denied without prejudice to petitioner’s right to apply to the trial judge for credit on his sentence under “Article 42.03, C.C.P., 1965 (Article 768, V.A.C.C.P.)”

Relator then filed his “Defendant’s Motion for Resentencing and Credit for Time Served” with the trial court. After a hearing, the trial court in compliance with the suggestion contained in our order re-sentenced relator to ten years, giving him credit from January 11, 1965.

Relator now contends that the “trial court by re-sentencing relator as it did, could only date the time from the original sentence which was March 19, 1953, and not January 11, 1965.”

In the re-sentencing procedure authorized by Article 42.03, Vernon’s Ann. C.C.P. and its predecessor, Article 768, V.A. C.C.P., the trial judge allowed all of the credit on the 10 year sentence such statutes authorized him to allow.

Article 42.06, V.A.C.C.P. and its predecessor, Article 772, V.A.C.C.P. clearly relate to sentence pronounced nunc pro tunc before appeal is taken, and not to re-sentence after affirmance for the purpose of crediting the time the defendant is in jail pending appeal.

We are without authority to order that relator be given credit upon his sentence for the time he was confined under a void sentence. Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009; Ex parte Nations, 164 Tex.Cr.R. 611, 301 S.W.2d 675; Attorney General Opinion 0-677, delivered May 5, 1966.

The application for writ of habeas corpus is denied.