Ex Parte Charles Beland , 94 Tex. Crim. 614 ( 1923 )

On August 28th, 1918, relator was convicted in the State Criminal District Court of Tarrant County of felony theft, and his punishment fixed at three years confinement in the penitentiary. The sentence was suspended, however, upon recommendation of the jury, and relator was released on his own recognizance. On November 30th, 1920 relator was convicted in the Federal District Court for the Northern District of Texas, at Fort Worth in said Tarrant County for violating the Federal "Anti-narcotic Law" and on December 6th, 1920 was sentenced by that court to serve two years in the United States penitentiary at Leavenworth, Kansas. He remained in the county jail of Tarrant County from the date of said last conviction November 30th to December 17th, 1920. Although his subsequent conviction occurred within the period of suspension under the conviction in the State Court, and although he remained in the county jail of Tarrant County from December 6th to December 17th after being sentenced in the Federal Court, he was not brought before the State Criminal District Court for the purpose of having set aside his suspended sentence granted under the judgment of date August 28th, 1918, but on December 17th, 1920 he was taken to the Federal penitentiary at Leavenworth in the State of Kansas. Deducting the time allowed for good behavior while there his term expired on July 14th, 1922, on which date he was taken into custody under a capias issued from the Criminal District Court of Tarrant County, brought back and placed in the Tarrant County jail, and on July 28th, 1922, the suspended sentence granted on August 28th, 1918, was set aside by reason of the subsequent conviction in the Federal court, and relator was then sentenced to serve three years in the penitentiary under the former conviction, the time beginning on July 14th, the date of the expiration of the Federal sentence. He was committed to the state penitentiary under the latter order.

Relator presents to this court an original application for writ of habeas corpus seeking release from the penitentiary on the ground that the Criminal District Court of Tarrant County was without power to revoke the suspended sentence; that the three years suspension had expired at the time the court undertook to act in the matter, and that such revocation must be made within the period of suspension, and could not be made after its expiration. The question presented is one of much interest, and we regret that under the settled holdings of this court it cannot be considered.

A writ of habeas corpus cannot serve the office of an appeal. (See many authorities cited in Note 3, under Art. 160, Vernon's Code Cr. Proc., and under Section 239, Branch's Ann. P.C.). Relator could not appeal from the judgment of conviction wherein his sentence was suspended so long as the suspension was effective, because no sentence had been pronounced and the judgment was not final, but when the court revoked the suspension on July 28th, 1922, and pronounced sentence upon relator the judgment then became a final judgment and the right of appeal at once accrued, and this was the legal, adequate and statutory remedy. Article 856, C.C.P.; Bierman v. State, 73 Tex. Crim. 284, 164 S.W. Rep., 846; Ex parte Lawson, 76 Tex.Crim. Rep., 175 S.W. Rep., 698; Thomas v. State, 87 Tex.Crim. Rep., 219 S.W. Rep., 153.

For the reasons stated the application for the writ will be denied.

Writ denied.