DAVIDSON, Judge (dissenting).

This court is without power or authority to entertain an appeal from an order nunc pro tunc.

By this decision, this court has now resolved solved itself into a 'nunc pro tunc' court — that is, an appellant court authorized to review 'nunc pro tunc' orders and decrees in a criminal case.

I can not help but wonder where this court obtains any such authority or jurisdiction. I confidently assert that no such authority or jurisdictional power exists and that such authority and power are assumed and are wholly unjustified.

The appellate jurisdiction of the Court of Criminal Appeals is clearly stated at two places in our laws: The first is in Art. 5, Sec. 5, of the Constitution of this state, Vernon's Ann.St., which provides as follows:

"The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law."

The other is in Art. 53 of the Code of Criminal Procedure of this state, which reads as follows:

"The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This article shall not be so construed as to embrace any case which has been appealed from any inferior court to the

county court or county court at law, in which the fine imposed by the county court or county court at law shall not exceed one hundred dollars."

These are the only provisions of law setting forth the appellate jurisdiction of this court.

Nowhere therein is any authority given authorizing an appeal from the entry of a nunc pro tunc judgment, order, or decree, or any collateral proceeding in a criminal case.

The only place in our criminal laws that we find any reference to 'nunc pro tunc' judgment is in Art. 772, C.C.P., which provides:

"If there is a failure from any cause whatever to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken."

When a judgment is corrected by nunc pro tunc order, it is the judgment as corrected that is the judgment in the case. No appeal is authorized from a judgment in a felony case.

The cases here involved were felonies.

The judgment in a felony case is not the final judgment in the case. It is the sentence pronounced upon the judgment that constitutes the final judgment necessary to an appeal and from which an appeal to this court may be taken. Art. 769, Vernon's Ann.C.C.P., and authorities cited under Note 3 thereof, including Skaggs v. State, Tex.Cr.App., 311 S.W.2d 410.

Indeed, we have so often dismissed, for want of jurisdiction, appeals in felony cases where there was no sentence that citation of authorities seems superfluous.

When my brethren authorize and consider the appeal in this case from the nunc pro tunc order, the statute and authorities supporting the rules above stated are destroyed and overruled.

It must be remembered that no sentence was passed after the entry of the corrected or nunc pro tunc judgment. The only sentence in each of the three cases here involved was passed upon appellant on January 7, 1954. No appeal was taken from those final judgments. Appellant accepted such sentences and is now — and was when this nunc pro tunc proceeding was instituted — serving those sentences in the penitentiary.

Notwithstanding this, my brethren affirm the cases.

The only order that should be entered by this court is that which would dismiss the appeal from the order nunc pro tunc.

If, however, my brethren are going to pass upon the nunc pro tunc order and determine the validity of the judgments as thereby amended and attempted to be corrected, then the only order that the record in this case authorizes to be entered is that which would hold that such amended judgments are invalid and wholly insufficient as judgments in a felony case. The corrected or nunc pro tunc judgments were no more valid after the nunc pro tunc entry than they were before.

The judgment originally entered in each case was invalid because of the indefinite punishment — that is, two to twelve years in the penitentiary. A valid sentence could not have been passed thereon. Lewis v. State, Tex.Cr.App., 235 S.W.2d 162; Elliott v. State, 155 Tex.Crim. R., 236 S.W.2d 796.

The state recognized the defect in and the invalidity of the judgments when, over four years after the passage of sentence upon appellant under the defective judgments and after he had accepted such sentences and was in the penitentiary serving those sentences, the district attorney filed the motion of the state to have the judgments corrected nunc pro tunc in each case.

In that motion the state alleged that the judgments originally entered were defective because of the indefinite term assessed at not less than two more than tweive years in the penitentiary and that such defect was the result of an error by the clerk of the court in recording the judgments, when in truth and in fact the punishment which the trial court entered was that of twelve years' confinement in the penitentiary.

Appellant was brought from the penitentiary to answer that motion.

Upon the hearing, the judge of the trial court, the district attorney, and the clerk of the court all testified that the indefinite punishment of not less than two nor more than twelve years, as it appeared in the judgments, was the result of a typographical error and that the punishment assessed in each case was twelve years' confinement in the penitentiary.

The trial court sustained the motion of the state and proceeded to enter, as of January 7, 1954, a new judgment in each case.

The adjudication in each new judgment is as follows:

"It is therefore considered by the Court that the Defendant, Randolph Johnston, is adjudged to be guilty of the offense of burglary of which he pleaded guilty, as confessed by him in his said plea of guilty, and as has been established by the evidence introduced, and that he be punished by confinement in the Penitentiary of this State for twelve years and that said Defendant be remanded to jail to await the further order of this Court herein."

The new and corrected judgment is redically different from the judgment originally entered.

The adjudicated part of the original judgment in cause No. 2975, which I will call the first of the three cases, reads as follows:

"It is therefore considered and adjudged by the Court, that the defendant, Randolph Johnson [sic], is guilty of the offense of Burglary and 2 previous convictions less than capital as confessed by him in his said plea of Guilty herein made, and that he be punished by confinement in the State Penitentiary for a term of not less than 2 years nor more than 12 years."

The judgment originally entered in the second case, or cause No. 2977, reads the same as the above except that appellant was found guilty 'of the offense of Burglary repetition of offense * * *.'

The judgment originally entered in the third case, or cause No. 2978, reads the same as cause No. 2977 in that appellant was found guilty of 'Burglary repetition of offense.'

The difference in the original and the amended judgments is apparent:

The offense of which the appellant was found guilty was burglary and repetition of offense.

It is interesting to note that the state made no reference to this matter in its motion for nunc pro tunc judgment. Nowhere in that motion did the state seek to amend that feature of the original judgment by striking therefrom the finding as to repetition of offense.

Nowhere in the testimony of the district attorney, the trial judge, or the clerk of the trial court, upon the hearing of the motion, does one find any intimation that the judgments in the particular mentioned were incorrect or erroncously entered.

Notwithstanding such fact, the trial court made no reference to the repetition of offense when he entered the nunc pro tunc or corrected judgment and found appellant guilty of the crime of burglary — and this, without reference to the indictment or the charge as contained in the indictment.

Finally, then, the original judgments are changed and amended in material aspects by the nunc pro tunc order without pleading or proof authorizing such change or order. In other words, the trial court attempted to and did change the original judgments, without pleading, notice, or evidence authorizing him to do so.

The defect and invalidity of the judgments as entered originally and unchanged by the nunc pro tunc order were carried into the sentences passed thereon, thereby rendering the sentences — each of them — invalid.

The sentence in the first case, No. 2975, recites 'that the defendant Randolph Johnson [sic] who has been adjudged to be guilty of Burglary and 2 previous convictions less than capital and whose punishment has been adjudged at confinement in the penitentiary for a term of not less than 2 nor more than 12 years * * *.'

That sentence has not been changed or amended in any particular.

If the judgment was invalid, as the state said it was, then the sentence is invalid because it is based upon an invalid judgment. When the state says that the judgment as originally entered was invalid, it condemns the sentence, because the sentence is based thereon and the defect is carried into and set out in the sentence.

Moreover, the law knows no 'repetition of offense.' Increased punishment is allowed only upon prior convictions which are prior both in point of time of the commission of the offense as well as conviction, and one prior conviction may not be used twice for enhancing the punishment under the second-offender statute.

Thus is demonstrated the highly irregular position and the confusion in which the state finds itself in its endeavor to demand of this appellant thirty-six years' confinement (twelve years in each case) in the penitentiary for three burglary cases upon a plea of guilty.

Throughout it all, the appellant appears to be saying nothing as he serves the sentence imposed, abiding the time when he shall have served sufficient time to demand his release from the penitentiary.

A convict may serve a void sentence and by that service pay his debt to the state the same as if the sentence had been regular.

This appellant is serving time in the penitentiary under invalid sentences.

I have expressed my views at length, because my brethren affirm the judgment of the trial court in each case rather than dismiss the appeal.

My brethren are not content with affirming the nunc pro tunc judgments but voluntarily take it upon themselves to reopen and adjudicate adversely to the appellant a habeas corpus proceeding which is not even before this court. Wherein, may I ask, do they find in this record any reference to or appeal from a writ of habeas corpus? There is none, yet my brethren announce that 'the relief prayed for by habeas corpus is again denied.'

There is a very good explanation for this entirely gratuitous ruling on the part of my brethren which I assert is an endeavor to prevent this appellant from attacking the sentences which he is now serving.

It must be remembered that appellant has not been resentenced since the corrected judgments were entered of record. The sentences he is serving are under the old and confessedly invalid judgments. He has not been called upon in the trial court to answer why sentence should not be imposed upon the corrected judgments.

As I have heretofore indicated, the judgments as corrected are void because, in the first instance, the punishment assessed was not authorized by the judgment entered and in the other two cases the judgments are void because the same prior conviction was used more than once to enhance the punishment as a second offender.

This court ought not to set up a 'straw' case by claiming that a writ of habeas corpus is before it challenging the sentences, just so it can adjudicate that the writ of habeas corpus has been determined. Yet that is the ultimate effect of what it is here doing.

I can but dissent.