Ex Parte Sepulveda

358 S.W.2d 630 (1962)

Ex parte Gilberto SEPULVEDA.

No. 34706.

Court of Criminal Appeals of Texas.

June 20, 1962.

Leo N. Duran, Gil C. Garza, Jr., Corpus Christi, for appellant.

R. L. Lattimore, Crim. Dist. Atty., Edinburg, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Relator, by petition for writ of habeas corpus, seeks his release from custody of the sheriff of Hidalgo County, who holds him under a certain writ issued out of the 92nd Judicial District Court of Hidalgo County, after revocation of probation, commanding that he be delivered to the director of the Texas Department of Corrections.

On May 7, 1962, relator's petition was ordered filed and set for submission on the question of whether the writ should issue.

In the petition, relator alleges that he is being illegally restrained of his liberty under a judgment of conviction entered on March 6, 1961, in Cause No. 8825, styled the State of Texas v. Gilberto Sepulveda, wherein he was convicted, upon a plea of guilty, of the offense of felony theft and assessed punishment at confinement in the penitentiary for three years.

Relator alleges that the judgment of conviction is void because the evidence adduced by the state at the trial was insufficient to show his guilt.

The sufficiency of the evidence to support a conviction under an indictment cannot be raised collaterally by habeas corpus but must be raised by appeal. Ex parte Wingfield, 162 Tex.Cr.App.R. 112, 282 S.W.2d 219.

Relator further alleges that the charges in the indictment were false and known to the prosecution to be false and that such fact was suppressed from the grand jury and the court by the district attorney. Relator alleges that such allegation is based upon the sworn statement of the prosecuting witness in the case.

The record reflects that the affidavit was introduced in evidence by the state at the trial, and, as to relator, is inculpatory.

Relator's claim of suppression of facts by the prosecution is denied under oath by the Honorable R. L. Lattimore, Criminal District Attorney of Hidalgo County, and the Assistant Criminal District Attorney, Honorable *631 Roberto Ornelas, in their affidavits which are before this court. Their denial of suppression is also supported by the affidavit of Honorable Arthur Gallucci, the attorney who represented relator upon the trial.

It is alleged, also, that the judgment of conviction is void because relator was convicted of embezzlement and the judgment recites his conviction for felony theft. If such be a fact, the judgment could have been reformed on appeal or by nunc pro tunc entry, and is not void and may not be collaterally attacked by habeas corpus. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

The petition for writ of habeas corpus is denied.

Opinion approved by the Court.