Opinion
No. 24985.
February 7, 1951.
Bracewell Wright, Huntsville, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
By proper procedure relator seeks to secure his release from the penitentiary and alleges two grounds therefor.
It is set out and shown by evidence that relator was convicted in Cause No. 2829 in the District Court of Karnes County, Texas, under and by virtue of an indictment dated May 18, 1945, charging him with felony theft. The record shows that he pleaded guilty and was by the court found guilty on the 19th day of June, 1945, and assessed a penalty of 'confinement in the State Penitentiary for a term of not less than two nor more than five years.' This judgment is void as it originally appeared on the record but has been corrected by nunc pro tunc order duly entered.
It is also shown by the record that appellant was convicted in the District Court of Bexar County, Cause No. 48149, on the 21st day of June, 1945, on a charge of forgery. The judgment shows that he pleaded guilty to the court and waived a jury; that he was found guilty as charged 'and should be punished by confinement in the State Penitentiary for a term of not less than Two, nor more than Three years.' This judgment is void and can not be authority for holding relator in the penitentiary unless it be shown that same has been corrected by nunc pro tunc order entered of record.
Relator further seeks his release by virtue of his claim for credit for time served in the Federal Penitentiary. For the reasons set forth in Ex parte Spears, Tex.Cr.App., 235 S.W.2d 917, this claim is without merit.
It is the order of the Court that relator's application for discharge be refused in so far as the judgment in the Karnes County cause and his claim for credit because of time served in the Federal Penitentiary are concerned and he is ordered remanded to the penitentiary authorities to serve the term imposed upon him by the conviction in Karnes County, 81st Judicial District Court.