Ex Parte Dooley

246 S.W.2d 631 (1952)

Ex parte DOOLEY.

No. 25731.

Court of Criminal Appeals of Texas.

February 27, 1952.

*632 Doyle Pevehouse, of Corsicana, for appellant.

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

DAVIDSON, Commissioner.

This is an original application for the writ of habeas corpus, by which relator seeks his discharge from the penitentiary because of the following facts:

On November 13, 1947, relator was convicted in the District Court of Eastland County in two ordinary felony cases, being numbered 10,512 and 10,534 upon the docket of said court, with punishment fixed at eight and ten years, respectively, in the penitentiary.

The judgment entered in each case shows upon its face that relator pleaded guilty to the offense charged, and that guilt was adjudged and punishment fixed by the trial judge. The plea was not before a jury.

There is an entire absence in the judgments of any reference to the requirements of Arts. 10a and 12, C.C.P., as amended, Vernon's Ann.C.C.P. arts. 10a, 12, such as waiver of trial by jury and consent and approval of the court and state's counsel for a trial before the court. These requirements are mandatory, and requisite to a valid judgment, upon a plea of guilty before the court in an ordinary felony case. Thompson v. State, Tex.Cr.App., 226 S.W.2d 872.

It follows that each of the judgments and the sentences imposed upon relator thereunder are void, and, for that reason, relator is entitled to be discharged from custody.

The invalidity of the judgments does not affect the indictments, which, for all this record shows, are yet pending.

It is ordered, therefore, that relator be delivered by the penitentiary authorities of this state into the custody of the sheriff of Eastland County to answer the accusations pending against him. Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286.

Opinion approved by the court.