Tilghman v. State

113 S.W.2d 911, 133 Tex. Crim. 640, 1938 Tex. Crim. App. LEXIS 162

• Court: Court of Criminal Appeals of Texas
• Decided: February 16, 1938
• Docket: No. 19436.
• Status: Published

Opinion

HAWKINS, Judge. —

Conviction is for burglary, punishment being assessed at confinement in the penitentiary for a term of twelve years.

It was alleged in the indictment that appellant on or about the 14th day of January, 1937, burglarized a house belonging to one W. R. McConnell; it was further averred that prior to the commission of said offense, to-wit: on the 20th day of May, 1932, appellant was convicted in the District Court of the United States, Southern District of Texas, of an offense of like character, the burglary of a United States Post Office. Conviction was had under this count of the indictment under proper instructions of the court and punishment was assessed at twelve years in the penitentiary under the provisions of Art. 62 of the Penal Code.

The record contains neither statement of facts nor bills of exception. The indictment is in proper form.

We observe that in pronouncing sentence against appellant the court apparently overlooked the fact that the punishment of twelve years was a fixed punishment under the provisions of Art. 62, P. C., and sentenced appellant for not less than two nor more than twelve years in the penitentiary. The sentence will be corrected so as to provide no minimum punishment, but that it shall read that appellant be confined in the penitentiary for a term of twelve years.

The judgment is affirmed.

Affirmed.