Ex Parte Roberts

344 S.W.2d 682 (1961)

Ex parte Samuel Lee ROBERTS.

No. 33203.

Court of Criminal Appeals of Texas.

March 29, 1961.

T. P. Henley, Phill Pickett, San Antonio, for appellant.

Charles J. Lieck, Jr., Criminal Dist. Atty., John G. Benavides, Harry A. Nass, Jr., Assts. Criminal Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

This is a habeas corpus proceeding brought by the relator seeking his release from the Texas Prison System.

The application for writ of habeas corpus was presented by relator to the Hon. John F. Onion, Jr., Judge of the Criminal District Court No. 2 of Bexar County, Texas, who granted the writ, developed the facts, and has certified same to this Court for determination as provided by Art. 119, Vernon's Annotated Code of Criminal Procedure.

The facts as certified show that relator is being confined in the penitentiary under a judgment of conviction rendered against him in Criminal District Court of Bexar County on November 14, 1956, in Cause No. S-55182 for the primary offense of unlawful possession of a narcotic drug in violation of Art. 725b, Vernon's Annotated Penal Code, with punishment assessed at life imprisonment being enhanced under Art. 63, V.A.P.C., by reason of two prior convictions for felonies less than capital.

It is further shown that the two prior convictions were for the offense of unlawful possession of marihuana in violation of Art. 725b, supra, and the felony offense of theft from the person.

In the recent case of Ex parte Aaron, Tex.Cr.App., 336 S.W.2d 180, we held a similar judgment of conviction for violation of the Narcotic Drug Act, Art. 725b, supra, with punishment of life imprisonment enhanced under Art. 63, supra by reason of two prior convictions for violation of the Narcotic Drug Act and felony theft, void and ordered the relator released from further confinement in the penitentiary under such judgment.

In so deciding, reference was made to the holdings of this Court in Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465; Granado v. State, Tex.Cr.App., 329 S.W.2d 864; and Fletcher v. State, Tex.Cr.App., 335 S.W.2d 613 that a prior conviction for violation of the Narcotic Drug Act cannot be used to enhance punishment under Art. 63, supra, for a subsequent violation of the act but only makes applicable the punishment provided in sec. 23(1) of Art. 725b, supra, for the second or any subsequent conviction for violating the provisions of the act.

Under the facts certified and the decisions of this Court, the enhancement of relator's *683 punishment under Art. 63, supra, was unauthorized and relator is entitled to be relieved from further confinement under the judgment.

Accordingly, it is ordered that relator be relieved from further confinement in the penitentiary under the judgment of conviction and that he be delivered by the penitentiary authorities to the sheriff of Bexar County to answer in Criminal District Court of Bexar County to the first and third counts of the indictment in Cause No. S-55182 under which he was convicted.

Opinion approved by the Court.

WOODLEY, P.J., absent.