Ex Parte Church

292 S.W.2d 120 (1956)

Ex parte Albert CHURCH, Jr.

No. 28472.

Court of Criminal Appeals of Texas.

June 20, 1956.

Albert Church, Jr., pro se.

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

WOODLEY, Judge.

This is an original application to this Court for writ of habeas corpus. Relator, an inmate of the penitentiary, attacks the validity of the conviction which he is serving.

The conviction was had in Cause No. 303 in the District Court of Culberson County. It is shown that upon a plea of guilty to a charge of robbery by assault before the court, a jury being waived, judgment was entered which recites that relator's punishment be assessed at "a term of not less than five years nor more than fifteen years."

On April 30, 1956, this application being presented to the writer, request was made of the present judge of the trial court to ascertain the facts as to whether or not a definite punishment was in fact assessed in said cause, and to certify to this Court such facts, together with any orders which might be entered nunc pro tunc for the purpose of making the records speak the truth.

*121 No facts have been certified and relator is entitled to be heard on the judgment, assuming that it correctly recites that no definite punishment was in fact assessed against him.

Under the holdings of this Court in Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Edwards v. State, 153 Tex. Cr.R. 301, 219 S.W.2d 1022, and Ex parte East, 154 Tex.Cr.R. 123, 225 S.W.2d 833, the judgment is void for want of a definite punishment.

Relator is ordered relieved from further confinement in the penitentiary under said conviction, and it is ordered that he be delivered by the penitentiary authorities to the Sheriff of Culberson County to answer in the District Court of said County to the indictment in the cause under which the conviction was had.