Opinion
No. 27998.
November 16, 1955.
No appearance for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an original application for a writ of habeas corpus brought by relator Floyd Jackson Hudson seeking his release from the Texas Prison System.
Relator was convicted in the District Court of Midland County in Cause No. 1981 on the 2nd day of August, 1954, for the felony offense of attempt at burglary, and his punishment was assessed at seven years in the penitentiary.
Article 1402, V.A.P.C., sets the punishment for this offense at not less than two nor more than four years. Relator, by certificate of the Texas Prison System, shows this Court that he has credit for time served in excess of two years, the minimum term set by the statute.
The sentence is excessive, and as to the excess over the two-year minimum is void. The relator has served the legal portion of the sentence and is entitled to be discharged. Ex parte Castleberry, Tex.Cr.App., 216 S.W.2d 584, and Ex parte Willis, 158 Tex.Crim. R., 255 S.W.2d 510, and cases there cited.
It is so ordered.