Ex Parte Richardson

230 S.W.2d 538 (1950)

Ex parte RICHARDSON.

No. 24876.

Court of Criminal Appeals of Texas.

May 31, 1950.

Bracewell & Wright, Huntsville, for appellant.

*539 George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Relator applies for habeas corpus alleging that he is restrained and incarcerated in the penitentiary of Texas and that such restraint is unlawful.

Relator alleges that he was convicted on a plea of guilty before the court for the offense of robbery with firearms in Cause Number 5440, in the District Court of Hamilton County, Texas, which conviction he alleges is void for two reasons:

(1) That the trial court assessed his punishment, a jury being waived, at a term of not less than two years or more than fifteen years in the penitentiary, and therefore such judgment is indefinite and uncertain as to punishment.

(2) That he was charged with robbery with firearms, a capital felony, and the trial court was without jurisdiction to try the case without a jury.

Certified copy of the judgment attached to Relator's application seems to bear out his contention.

Other certified copies furnished to this court by the trial court show a definite punishment of fifteen years to have been assessed by the trial judge.

We are not called upon, however, to pass upon Relator's contention regarding such conviction by reason of other matters disclosed by his application.

From the exhibit attached, it is disclosed that in addition to the conviction complained of Relator was received by the penitentiary authorities under convictions for the offenses of assault with intent to murder, felony theft, forgery and passing a forged instrument, from other counties.

Therefore, regardless of the conclusion reached as to the validity of the Hamilton County conviction, we would be unable to determine that Relator is entitled to discharge. See Ex parte Neisler, 126 Tex. Cr.R. 26, 69 S.W.2d 422.

The writ of habeas corpus is denied.

Opinion approved by the Court.