Ex parte Lyon , 163 Tex. Crim. 649 ( 1956 )

WOODLEY, Judge.

Relator, an inmate of the penitentiary, seeks release upon the contention that a number of sentences pronounced against him in various counties are void.

One of the sentences attacked was pronounced in Cause No. 6722 in the district court of Wise County, Texas, on September 9, 1952, wherein upon a plea of guilty before the court a term of 25 years was assessed.

The indictment in said Cause No. 6722 charged the offense of robbery with firearms, and the judgment and sentence as entered in the minutes recited that relator entered his plea of guilty and was sentenced for such offense.

The Wise County conviction was attacked as void because the offense was a capital felony and had not been reduced.

On July 13, 1956, motion for entry of judgment and sentence nunc pro tunc was filed by counsel for the state, and after hearing at which relator and his court-appointed counsel appeared and evidence was heard, the motion was granted.

It appears from the transcript of this proceeding that in truth and in fact that portion of the indictment which alleged the use of firearms had been stricken on written motion of the attorney representing the state. This was done by the court’s order in writing filed the same day the application to waive jury was made and approved. The court, in granting the motion, specifically ordered that “said criminal action is reduced from ‘robbery with firearms’ to ‘robbery’ by deleting * * * from the indictment * * * the words and phrase ‘and then and there using and exhibiting a firearm, to-wit, a pistol’ ”.

No appeal was taken from the judgment and sentence entered nunc pro tunc as of September 9, 1952, and the contention that the conviction is void is overruled.

Relator being lawfully confined in the penitentiary under the sentence of not less than 5 years nor more than 25 years in said Cause No. 6722 in the district court of Wise County, we need not consider the attack made upon other sentences against relator.

The application is denied.