Ex Parte Nations
- Reporters:
- , ,
- Before:
- Woodley
Lead Opinion
Rеlator, an inmate of the Texas Prison System, aсting as his own counsel, seeks his release from confinement by writ of habeas corpus filed in the district court of Brown County, alleging that the sentence by virtue of which he is confined is void because his triаl counsel was not present at the time he wаs sentenced.
The judge of the district court of Brоwn County filed the writ, developed the facts, and certified the same to this court in accordance with the terms of Article 119, V.A.C.C.P. From this, we learn that rеlator’s trial counsel advised the court that nеither he or his client desired to appeаl the conviction, that he did not desire to be present when the relator was sentenced, аnd that he was absent at such time of his own volition.
The state submits that Ex parte Oliver, 156 Texas Cr. Rep. 235, 240 S.W. 2d 316, is authority for denying the writ.
Without passing on such contention at this time, we obsеrve the following:
Relator was sentenced on April 5, 1950, to not less than two nor more than 25 years for the offense of assault with intent to rape.
*612Relator’s prison record shows that he has crеdit on such sentence for more than 11 years аnd 6 months.
If this court were to grant the writ, we would not ordеr relator discharged, as he prays, but would order him returned to Brown County for re-sentencing and relаtor would lose the credit which he has earnеd. Where a prisoner secures his release from confinement under a void sentence, hе may not claim credit for the time he has servеd under such sentence. Ogle v. State, 43 Texas Cr. Rep. 219, 63 S.W. 1009, and Marshall v. State, 73 Texas Cr. Rep. 531, 166 S.W. 722.
Becausе of the peculiar circumstances here presented, the writ of habeas corpus is dеnied.
Relator may file a motion for rehearing if he desires.
Lead Opinion
ON RELATOR’S motion for rehearing
WOODLEY, Judge.Relator insists that the absence of his cоunsel at the time sentence was pronounсed entitles him to release from the penitеntiary. We do not agree.
The facts certifiеd by District Judge Newman show that appellant’s cоunsel advised the court that neither he nor his cliеnt desired to appeal and that he did not dеsire to be present when the defendant was sеntenced. It is further certified that appellant’s counsel was absent of his own will and volition.
The sеntence shows on its face that relator was brought into open court for the purposе of having sentence pronounced; that hе was asked whether he had anything to say why sentence should not be pronounced and he answеred nothing in bar thereof.
The absence of rеlator’s counsel, under the facts certified, is not fatal to the conviction.
Relator’s motion for rehearing is overruled.