Opinion
No. 42048.
May 7, 1969.
Appeal from the 71st Judicial District Court, John Furrh, J.
D. Samuel Coats, Dallas, for petitioner.
Charles A. Allen, Dist. Atty., James Wedding, Asst. Dist. Atty., Marshall, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is a habeas corpus proceeding under Article 11.07, Vernon's Ann.C.C.P., and in accordance with the holding in Ex parte Jack Young, Tex.Cr.App., 418 S.W.2d 824. The petitioner is confined in the Texas Department of Corrections under sentence in Cause No. 19,804 of the District Court of the 71st Judicial District of Harrison County, Texas, on June 16, 1964, ordering his confinement for life for the offense of robbery by the use of a firearm.
Under Art. 1408, Vernon's Ann.P.C., the punishment for robbery with firearms is `death or by confinement in the penitentiary for any term not less than five years.'
The Honorable John Furrh, Judge of the 71st Judicial District Court of Harrison County, held the hearing on the application for habeas corpus and correctly concluded that a life sentence is not included as punishment for robbery with firearms and that such life sentence was void. He found that petitioner had been given credit by the Texas Department of Corrections for more than seven years. That part of the sentence in excess of the minimum punishment of five years provided for the offense of robbery with firearms is void, and he is entitled to release. Ex parte Webb, Tex.Cr.App., 374 S.W.2d 675; Ex parte Foight, 165 Tex.Crim. R., 306 S.W.2d 132; Ex parte Goss, 159 Tex.Crim. R., 262 S.W.2d 412; Ex parte Erwin, 145 Tex.Crim. R., 170 S.W.2d 226. See Ex parte Cole, Tex.Cr.App., 417 S.W.2d 408; Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46.
The relief under the writ is granted, and petitioner is ordered discharged from further confinement under said life sentence.