Opinion
No. 46440.
February 21, 1973.
Billy J. Wilder, Guinn D. Tate, Henderson, for relator.
Ralph Prince, Dist. Atty., and Nathan Holt, Asst. Dist. Atty., Longview, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
This is a habeas corpus proceeding under Article 11.07, Vernon's Ann.C.C.P., and in accordance with the holding in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. The petitioner is confined in the Texas Department of Corrections under sentence in Cause No. 8565 — B of the District Court of the 124th Judicial District of Gregg County, on May 4, 1970, ordering his confinement for life for the offense of robbery.
It is petitioner's contention that he was convicted for the offense of robbery with firearms, that he was sentenced to life imprisonment, and that such sentence is void under Article 1408, Vernon's Ann.P.C.
A hearing was had on petitioner's writ on the 27th and 31st of October, 1972, in the District Court of the 124th Judicial District of Gregg County. At the conclusion of the hearing, the trial court denied the writ.
After reviewing the record, we find that upon his plea of guilty the petitioner was convicted of the offense of robbery with firearms and his punishment was assessed at life. We further find that at this time petitioner has been given more than five years credit by the Texas Department of Corrections.
Under Article 1408, V.A.P.C., the punishment for robbery with firearms is "death or by confinement in the penitentiary for any term not less than five years." That part of the sentence in excess of the minimum punishment of five years provided for the offense is void and petitioner is entitled to release. Ex parte Taylor, Tex.Cr.App., 462 S.W.2d 41; Ex parte Collier, Tex.Cr.App., 440 S.W.2d 854.
The relief under the writ is granted, and petitioner is ordered released from further confinement under the life sentence.