*1 chose, it was If he so prematurely entered. think that
THE COURT: mis- that in a
counsel well knows action, the date of the
demeanor
judgment is the date of the indi- the record so just trying to mix He is
cated. jury.”
up facts for the of counsel
In view of the statement re the court’s
for the defense to which addressed, the fact that
mark was
jury not to consider was instructed remark,
court’s
shown. is affirmed. Eugene FERRELL.
Ex Parte Bert
June
Rehearing Denied Oct. Norris, Nahas, Raeburn Jr.,
M. Gabriel Houston, relator. *2 Vance, State, Tex.Cr.App., Atty., Carol S. Dist. C. firmed. Ferrell v. James Atty., Houston,
Brough, Asst. Dist. and S.W.2d 86. Austin, Douglas, Atty., Leon B. State’s for pendency appeal, During the rela- the State. original application for tor filed an writ corpus alleging Court habeas OPINION discharged custody was entitled to be “re-sentencing nullity.” was a because Judge. MORRISON, application January on This was denied by order wherein was stated written original application This is an for writ de- corpus habeas “Petition for writ of corpus wherein relator seeks to right prejudice nied without given have this Court order that he be on his apply to the trial for credit judge upon credit his resentence on 42.03, C.C.P., 1965 “Article sentence under 1966,for the time he confined un- 768, V.A.C.C.P.)” (Article 19, 1953, der a sentence on March by which sentence was declared void Mo- his “Defendant’s Relator then filed United States District for the East- Court Time Resentencing and for tion for Credit ern District of Texas. a hear- After the trial court. Served” with compliance with trial court in ing, the Relator was to life originally re-sen- order suggestion contained imprisonment in Cause March on giving him years, relator to ten tenced 19, 1953, by which was affirmed January credit from reported Tex.Cr.App., 261 S.W.2d Thereafter, 564. the United District States “trial contends Relator now Court for the Eastern District of Texas did, as it re-sentencing relator court application relator’s writ the time from only date could corpus the ground habeas that his attor- 1953,and sentence which was ney present was not at the time relator was January 1965.” 67,984, being sentenced in Cause there intelligently showing waived procedure au In right. such of the Federal Ann. by Article Vernon’s thorized District December V.A. predecessor, its C.C.P. and 1964, ordered that relator be released all of C.C.P., judge allowed the trial custody Department Texas statutes such the 10 credit on if he Corrections had not been re-sentenced him to allow. authorized District Cause No. Texas, County, Court of Harris within its thereof, thirty days his attor- from the date clearly predecessor, ney being present in the time of court at pro tunc pronounced nunc relate to sentence sentencing. taken, re-sen and not to appeal is before purpose after affirmance tence compliance Pursuant to this order jail is in the defendant crediting the time relator, therewith, being present, his counsel appeal. pending 11, 1965, January imprisonment penitentiary life in the state to order Criminal District Court of Harris
County, Appeal per- given therefrom was his sen Court; fected to this tence for the he was confined under a provide State, Ogle trial court reformed to void sentence. 1009; a term of ten S.W.
years. 675; Attorney As was af- Tex.Cr.R. 301 and, Opinion 0-677, May including com- General that sentence delivered earned, pensatory had total credit of almost 19 application for writ applies in denied. Article 42.06 situations While entered or sen-
where pronounced, tence that the sec- conclude DISSENTING OPINION *3 appli- ond of that also sentence statute is pronounced is cable where the sentence McDONALD, Presiding Judge. void, thereby re-sentencing, necessitating The proceedings were insti- is, effect, at a void sentence in no sentence tuted after date of the effective of the Code The time has been all. result is that where 1965, Procedure, provisions of the a the amount served under void sentence applicable pro- are therefore to those on the cor- time be credited of served must ceedings. Article mandatory rected I think was sentence. time that relator receive credit for provides: 4, he when was
“If there any pronounced is a failure cause and the sentence whatever judgment to enter pro- and to so reflect. date should be reformed sentence, nounce may the judgment be having the writer’s view that It is pronounced and any sentence at statutorily-fixed 10 excess of served subsequent time, unless trial has new he of which year for the offense sentence granted, arrested, been or is convicted, his continued was appeal or an been Any taken. be corpus should unlawful. Writ punishment served or from the suffered discharged. and relator ordered the judgment and sentence should pronounced entered and and respectfully dissent. finally up- until entered shall be credited finally pronounced.” on the sentence TO CONSOLIDATE ON MOTION STATE, FERRELL vs. WITH credit, The allowance of under 42.03, supra, spent jail pending for time disposition discretionary final a cause is of being part the trial judge, with such time not WOODLEY, Judge. punishment. The of allowance requesting Motion filed
credit, 42.06, supra, under punishment or from the served suffered 38,660, be with- in Cause No. time the and sentence should ; that with drawn said cause consolidated pronounced until have been entered and judg- this Cause and that discretionary finally entered is render- and ment of be “reversed conviction court, mandatory. trial but Ferrell petitioner ed” because sentence parte 10 Ex has served in excess pronounced have been conviction Holley, S.W.2d 170 Tex.Cr.R. 339 was when relator cited. pro- in the void originally fact 611, 301 affirming ceeding. Mandate State, Tex.Cr.R. Ogle v. cause was issued in that our 63 S.W. punish- and relator’s November to dis- holding petitioner not entitled began on sentence under that void may claim theory he sentenced, charge upon finally At the time he was date. the life under time served 12 credit for the actually served in excess had alleged the Federal to be or about which the offense was sentence held committed.) have been void. Tuttle, writing for Chief sustaining were in error state’s Justice Court of
United States judgment. reform the Edge Wainwright, Fifth Circuit not, will to the favorable Edge pointed F.2d out that had served term, at this late be disturbed. date over of the 15 consolidate and Petitioner’s motion to collaterally, attacking and said: reversal is overruled. held, yet been knowl- “It has not precluded could be edge, that State manslaughter retrying him on refusing to
charge or from against subse-
twelve-year’s service *4 might
quent which * * * upon him. KIRBY, Appellant, Donald Lee question knotty “The one which be considered represent the counsel who will him Texas, Appellee. The STATE of express opinion remand. We due whether it would be a denial of process for the State reincarcerate offense, he is suc- Edge for same if Oct. relief, obtaining cessful years credit for the twelve already spectre served. as being subjected to much Edge’s such, prison how-
twenty more
ever, expressly that we constrained feel problem.” allude to appro
Judge Tuttle’s statement is
priate give here and we would be inclined to
serious consideration judg withdraw our
ment of conviction as reformed it not were that a the fact re-examination us that the
record convinces indictment
valid; error at that there was trial; evidence intro that sufficient jury’s finding
duced to sustain forgery for which
offense of after 1949was committed convicted in robbery in 1941 became punish
final, been affirmed. life should
(The indictment was introduced in evi-
dence in which was set out check al-
leged forged, to have been check
was dated November the date on