Welch v. State

Full title: Babe WELCH, Appellant, v. The STATE of Texas, Appellee

Court: Court of Criminal Appeals of Texas

Date published: Jun 26, 1965

392 S.W.2d 139 (Tex. Crim. App. 1965)

Opinion

No. 38420.

June 26, 1965.

Appeal from the 84th Judicial District Court, Hutchinson County, Max W. Boyer, J.,

Wm. Brode Mobley, Jr. (on appeal only), Corpus Christi, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appellant Babe Welch was convicted in the District Court of Hutchinson County in Cause No. 1888 of attempted burglary, with punishment enhanced under Article 63 P.C.

On November 10, 1955 sentence was pronounced and no appeal taken.

Appellant, having exhausted his remedy in State Court, petitioned for writ of habeas corpus filed in Civil Action No. 4199 in the United States District Court for the Eastern District of Texas, Tyler Division. After hearing the writ was granted.

Judgment was entered April 29, 1964 requiring the respondent, Dr. George J. Beto, Director, Texas Department of Corrections, to release appellant herein from his custody and set him free if within 20 days from the date of the judgment becoming final Appellant Welch had not been re-sentenced by the District Court of Hutchinson County, Texas, in Cause No. 1888 on the docket of said court, with his attorney of his own selection being present in court at the time he was re-sentenced. Respondent, Dr. Beto, appealed from said judgment to the 5th Circuit Court of Appeals. On September 2, 1964 motion by the Appellee Welch to dismiss the appeal was denied.

On February 11, 1965 Babe Welch was re-sentenced in Cause No. 1888 in the District Court of Hutchinson County, his counsel being present, and gave notice of appeal to this Court. On February 26, 1965 the appeal from the order entered in the United States District Court was dismissed on motion of the appellant as being moot.

It is appellant's contention that the District Court of Hutchinson County was without jurisdiction to re-sentence appellant on February 11, 1965.

He agrees that if said District Court was without jurisdiction this Court is without jurisdiction to entertain the appeal from the sentence, and that the only court which could grant his relief is the Federal District Court at Tyler.

We find no error which would warrant reversal of the conviction, nor do we find that we are without jurisdiction to affirm it.

The judgment is affirmed.