Ex parte Pruitt , 610 S.W.2d 782 ( 1981 )

OPINION

KEITH, Commissioner.

In this original post-conviction habeas corpus proceeding under Art. 11.07, V.A.C. C.P., petitioner contends that he is entitled to relief because the indictment forming the base of his conviction was void.

The indictment, which was returned on July 16, 1975, charged that petitioner committed the offense of aggravated kidnapping on June 20,1975. Apparently this was a companion case to Carpenter v. State, 551 S.W.2d 724 (Tex.Cr.App.1977), because the indictment in our record is in the exact language quoted by the Court in that case down to and including the date of the offense and the name of the complaining witness.

Petitioner pleaded not guilty to the offense but the jury found him to be guilty and assessed his punishment at confinement for ninety-nine years. No appeal was perfected and appellant is now represented by Staff Counsel for Inmates, Texas Department of Corrections.

The trial court has certified to this Court a copy of the indictment, judgment, and sentence and has confirmed that which is apparent upon the face of the record: the indictment was and is void and the conviction must be vacated under the decision in Carpenter v. State, supra.

We do not find it necessary to elaborate further upon either the law or the facts of the case since the fact structure of this case presents a mirror image to that considered by the Carpenter court. Petitioner is entitled to relief from the void conviction.

Carpenter was a direct appeal and the Court held that the language in the indictment was sufficient to charge the misdemeanor offense of false imprisonment; consequently, we reversed the felony conviction and remanded the cause. (551 S.W.2d at 726) From our record, it appears that petitioner has been confined at all times since his conviction on January 21, 1976, and is presently an inmate of the Texas Department of Corrections by virtue of said conviction.

The judgment and sentence of petitioner in Cause No. 5432 in the 1st Judicial District Court of Jasper County, Texas, dated January 21,1976, being void, is now vacated and set aside. It is ordered that petitioner be released from further confinement in the Texas Department of Corrections by virtue of such sentence. It is further ordered that a copy of this opinion be delivered to the Warden of said department as his authority for the release of petitioner. The foregoing order is entered without prejudice to the right of the State to further prosecute the misdemeanor charge of false imprisonment. Carpenter v. State, supra (551 S.W.2d at 726).

Relief granted.

Opinion approved by the Court.