Heard v. State

416 S.W.2d 427, 1967 Tex. Crim. App. LEXIS 923

• Court: Court of Criminal Appeals of Texas
• Decided: June 14, 1967
• Docket: No. 40431
• Status: Published

Opinion

OPINION

WOODLEY, Presiding Judge.

The offense is burglary of a private residence; the punishment, 99 years. (Art. 1391 Vernon’s Ann.P.C.)

The indictment alleged a prior conviction for burglary of a private residence.

The jury that had found appellant guilty found that the allegations as to the prior conviction were true and, as instructed by the court, assessed the punishment at 99 years.

This case was tried under the 1965 Code of Criminal Procedure prior to the decision of this court on rehearing in Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46, 50, which overruled Joseph v. State, Tex.Cr. App., 367 S.W.2d 330; Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Sellars v. State, 401 S.W.2d 835; and Madeley v. State, Tex.Cr.App., 388 S.W.2d 187.

The statute provides no maximum punishment for the offense of burglary of a private residence (Art. 1391 V.A.P.C.). Art. 62 P.C. did not authorize the 99 year term. Ex parte Davis, supra; Ex parte Balas, Tex.Cr.App., 412 S.W.2d 53; Ex parte Joseph, Tex.Cr.App., 414 S.W.2d 678.

The judgment is reversed and the cause remanded.