Ex parte Nash

304 S.W.2d 121, 165 Tex. Crim. 87, 1957 Tex. Crim. App. LEXIS 2253

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 1957
• Docket: No. 29,088
• Status: Published

Opinions

BELCHER, Judge.

Relator, an inmate of the Texas Penitentiary, seeks his release by writ of habeas corpus. His application for such writ was presented to Hon. A. C. Winborn, Judge of Criminal District Court No. 3 of Harris County, and after hearing, the writ was granted and made returnable before this court in accordance with Art. 119, Vernon’s Ann. C.C.P.

Relator attacks as void the judgment and sentence in Cause No. 74,563 in Criminal District Court No. 3 of Harris Counuty, Texas, on the ground that at the time he entered his plea of guilty before the court no evidence was offered showing that he committed the offense charged in the indictment.

Upon the hearing relator offered in evidence a certified copy of the judgment in Cause No. 9176 in the district court of Brazos County, dated February 25, 1955, which shows that he was adjudged to be guilty of the offense of burglary and assessed punishment of three years in the penitentiary. Said judgment included an order showing that the relator was placed on probation.

He next offered in evidence certified copies of the judgment and sentence in Cause No. 74,563 in Criminal District Court No. 3 of Harris County. These instruments show that on June 13, 1955, while represented by counsel, he waived a trial by jury, entered a plea of guilty, evidence was submitted, and the court found him guilty of the unlawful possession of morphine as charged and assessed his punishment at three years in the penitentiary. They further show that sentence was pronounced on June 13, 1955.

He also offered in evidence the order of the district court of Brazos County in Cause No. 9176, dated June 25, 1955, revoking the order of probation entered on February 25, 1955. Sentence was pronounced in said cause on June 25, 1955. No notice of appeal appears in the record before us.

The three year sentence for the burglary conviction has not yet expired and no showing is made that it has ceased to be effective.

Under the record before us, even if we determined the Harris County conviction to be invalid, the relator would not be eligible for discharge. Ex parte Neisler, 126 Texas Cr. Rep. 26, 69 S.W. 2d 422; Ex parte Kemp, 154 Texas Cr. Rep. 633, 230 S.W. 2d 232; Ex parte Padgett, 230 S.W. 2d 813.

The relief prayed for is denied.

Opinion approved by the court.