Ex parte Pitrucha , 158 Tex. Crim. 426 ( 1953 )

WOODLEY, Judge.

This is an application for habeas corpus originally presented to this court.

Relator, an inmate of the penitentiary, is serving a sentence of not less than five nor more than fifteen years for rape. The sentence is regular in form.

The attack is upon the judgment upon which the sentence was pronounced. It recites that, upon a jury trial, appellant’s punishment was assessed at fifteen years in the penitentiary, but erroneously provides that relator shall be punished by confinement in the state penitentiary for a term of “not less than five years nor more than fifteen years.”

The defect in the judgment is such as could have been corrected on appeal under the provisions of Art. 847 C.C.P. Judgments containing a similar defect were reformed on appeal in Slusser v. State, 155 Tex. Cr. R. 160, 232 S.W. 2d 727, 732, and in Ellison v. State, 155 Tex. Cr. R. 336, 235 S.W. 2d 157. The judgment is therefore not void and is not subject to attack in this collateral proceeding.

The cases of Ex parte East, 154 Tex. Cr. R. 123, 225 S.W. 2d 833, Ex parte Traxler, 147 Tex. Cr. R. 661, 184 S.W. 2d 286, and Edwards v. State, 153 Tex. Cr. R. 301, 219 S.W. 2d 1022, cited by appellant, are not applicable.

Relator’s punishment was assessed by the jury at a definite term of fifteen years. Art. 698 C.C.P. required the entry of a judgment upon that verdict.

The application for writ of habeas corpus is refused.