Ex Parte Kemp

230 S.W.2d 232, 154 Tex. Crim. 633, 1950 Tex. Crim. App. LEXIS 2186

• Court: Court of Criminal Appeals of Texas
• Decided: May 24, 1950
• Docket: 24877
• Status: Published

Opinion

WOODLEY, Judge.

Relator filed his petition for writ of habeas corpus alleging that he was illegally restrained of his liberty by officials of the Texas Prison System upon a void conviction in Cause No. 48,458, in the criminal district court of Bexar County, Texas.

Upon a hearing before Hon. Max M. Rogers, Judge of the 12th Judicial District of Texas, certified copies of the judgment and sentence in said Cause No. 48,458, as filed with the Texas Prison System, were offered in evidence.

The judgment shows that the court assessed relator’s punishment in said cause at “not less than five nor more than fifteen years” in the penitentiary for the offense of robbery.

If the punishment shown by such judgment is the punishment actually assessed by the judge, a jury being waived, the judgment would be void. See Ex Parte East, 154 Tex. Cr. R. 123, 225 S. W. 2d 833; Ex Parte Traxler, 147 Tex. Cr. R. 661, 184 S. W. 2d 286.

Relator, in addition to such conviction in Bexar County, it is shown, is also under sentence for felony theft in Cause No. 1925 in the district court of San Patrico County, dated October 30, 1945, for a term of from two to seven years, which appears to be regular and unsatisfied.

He also appears to have been convicted in Cause No. 6892, in the criminal district court of Nueces County, Texas, on November 1, 1945. The judgment in. that cause is also indefinite in regard to the punishment assessed.

Whether such indefinite judgments are void or were correctly rendered but erroneously entered by clerical error and therefore subject to reformation, nevertheless relator is legally restrained in prison by virtue of the above conviction in the district court of San Patricio County, Texas, and is therefore not now entitled to relief in this proceeding. See Ex Parte Neisler, 126 Tex. Cr. R. 26, 69 S. W. 2d 422.

The relief prayed for is therefore refused.

Opinion approved by the Court.