Ex Parte Willis

255 S.W.2d 510 (1953)

Ex parte WILLIS.

No. 26289.

Court of Criminal Appeals of Texas.

March 4, 1953.

*511 No attorney on appeal for appellant.

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

WOODLEY, Judge.

Upon his plea of guilty before the court, a jury having been waived, relator was found guilty of the offense of "forgery and Passing Forgery", and the judgment recites that his punishment was assessed at ten years in the penitentiary.

Sentence was pronounced upon this judgment in the District Court of Nueces County on March 13, 1951, being Cause No. 8041 on the docket of said court, and relator is now confined in the penitentiary under such sentence. He sought discharge by writ of habeas corpus which was granted by District Judge W. S. Barron and made returnable before this court as provided in Art. 119, V.A.C.C.P.

Relator is now credited with more than two years on such sentence, due to good time earned and time served.

The indictment against relator was in two counts, one charging forgery and the other passing a forged instrument.

Art. 1005, V.A.P.C., provides that under such an indictment only one penalty shall be assessed, which shall not exceed the greatest punishment fixed by law to the highest grade of offense of which the defendant is convicted. The maximum punishment which might have been assessed against relator was therefore seven years for the offense of forgery.

Under the holdings of this court in Ex parte Castleberry, Tex.Cir.App., 216 S.W.2d 584, relator having served the minimum punishment for the offense charged, is entitled to his discharge, the judgment as to the punishment in excess thereof being invalid.

Relator's prayer for release is granted and he is ordered discharged from confinement under the sentence mentioned.