Ex Parte Murillo

See case details

Ex parte Raymundo MURILLO

No. 50210

Court of Criminal Appeals of Texas

June 11, 1975

Rehearing Denied Oct. 8, 1975

528 S.W.2d 127

win,

145 Tex.Cr.R. 504, 170 S.W.2d 226 (1943), and its offspring. Those cases hold that a successful habeas corpus attack upon a void sentence entitles a prisoner to release upon a showing that he has served the minimum penalty affixed by law to the offense.

In Erwin, as in this case, the trial court pronounced an indeterminate sentence, “fixing in such sentence as the minimum the time provided by law as the lowest term . . . and as the maximum the term stated in the verdict.” Art. 42.09, Sec. 1, V.A.C.C.P. The trial court in Erwin correctly affixed the minimum but assessed a maximum that was not within the statutory range. On appeal, this Court held that in such a situation a habeas corpus petitioner was entitled to discharge if he had served the minimum term.

The Erwin Court seems to have reasoned that since the minimum was valid, but the maximum was unauthorized, anything over the minimum was also unauthorized, and therefore unenforceable.

This analysis is simply not persuasive. It erroneously assumes that the error occurred at the time of the pronouncement of sentence, Art. 42.03, V.A.C.C.P., when in fact the error took place at the time punishment was assessed. Art. 37.07, V.A.C.C.P. Because of the Legislature‘s adoption of a bifurcated system of criminal trials, this Court is empowered to mandate a reversal and remand only as to the punishment phase where the court assesses punishment. Cf.

Brumfield v. State, supra. We hold today, as we did in Murillo, that such a partial remand is also an available remedy in habeas corpus actions.

Accordingly, the holding in Erwin is expressly overruled.² It follows that the petitioner must be remanded to the trial court for a proper assessment of his punishment by the trial judge.

It is so ordered.

Ray J. McQuary, Rosharon, for appellant.

Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon‘s Ann.C.C.P.

Murillo contends that he is illegally confined on a void sentence. On June 5, 1973, he was convicted for the offense of robbery by assault by the use of a firearm under Article 1408 of the former penal code, Vernon‘s Ann., which provided, in part, the punishment “. . . by confinement in the penitentiary for any term of years not less than five years.” A plea of guilty was entered and the court assessed the punishment at life which was not authorized under the statute. He has not served the minimum of five years under the statute and is not entitled to be discharged under earlier decisions of this Court.

Applicant is correct in his contention that life is not valid as punishment for robbery by firearms under Article 1408, supra.

He wants this Court to hold that he is entitled to be discharged when he has obtained credit for five years. In view of our disposition of this cause, it is not necessary to pass upon this contention.

Recently this Court returned a case for the assessment of punishment in a post conviction habeas corpus proceeding such as this where there was error in assessing punishment.

Ex parte Taylor (Tex.Cr.App.1975), opinion withdrawn and not to be published.

In keeping with the decision in the Taylor case, the cause should be remanded to the trial court for the proper assessment of punishment under Article 1408, supra.

It is so ordered.

OPINION ON PETITIONER‘S MOTION FOR REHEARING

In our original opinion in this case we relied upon

Ex Parte Taylor (Tex.Cr.App.1975), opinion withdrawn and not to be published, as authority for remanding this cause to the trial court for a proper assessment of punishment. The Taylor opinion has now been withdrawn by a subsequent per curiam opinion holding that the question in that case had been rendered moot by the petitioner‘s discharge from his sentence.

However, we remain convinced that the original disposition of this case was correct. See

Ex Parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975).

The motion for rehearing is denied.

Notes

2

To the extent that they follow or approve of the holding in

Ex Parte Erwin, supra, the following cases are also overruled:

Ex Parte O‘Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336 (1943);

Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344 (1943);

Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493 (1943);

Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588 (1947);

Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250 (1947);

Ex Parte Castleberry, 152 Tex.Cr.R. 583, 216 S.W.2d 584 (1949);

Ex Parte Geisling, 243 S.W.2d 833 (Tex.Cr.App.1951);

Ex Parte Milina, 156 Tex.Cr.R. 511, 244 S.W.2d 206 (1951);

Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412 (1953);

Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403 (1956);

Ex Parte Foight, 165 Tex.Cr. 153, 306 S.W.2d 132 (1957);

Ex Parte Webb, 374 S.W.2d 675 (Tex.Cr.App.1964);

Ex Parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967);

Ex Parte Balas, 412 S.W.2d 53 (Tex.Cr.App.1967);

Ex Parte Morgan, 417 S.W.2d 400 (Tex.Cr.App.1967);

Ex Parte Cole, 417 S.W.2d 408 (Tex.Cr.App.1967);

Ex Parte Benfield, 417 S.W.2d 812 (Tex.Cr.App.1967);

Ex Parte Collier, 440 S.W.2d 854 (Tex.Cr.App.1969).

Case Details

Case Name: Ex Parte Murillo

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 11, 1975

Citation: 528 S.W.2d 127

Docket Number: 50210

Court Abbreviation: Tex. Crim. App.