Ex parte Brotherton , 1970 Tex. Crim. App. LEXIS 1184 ( 1970 )

OPINION

BELCHER, Judge.

This is a habeas corpus proceeding instituted under the provisions of Article 11.07, Vernon’s Ann.C.C.P., by an inmate of the Texas Department of Corrections, attacking as void the conviction under which he is now confined, and he seeks his discharge therefrom.

The petitioner’s application for a writ of habeas corpus along with the findings of fact and conclusions of law of the trial court, the Criminal District Court No. 3 of Dallas County, Texas, was transmitted to this Court.

Judge James B. Zimmermann found as a matter of fact that the petitioner was convicted on his plea of guilty in Cause Number D-9538-J on May 18, 1964, of the offense of assault with intent to commit robbery and his punishment was assessed at 13 years'in the Texas Department of Corrections with credit on the sentence to begin December 17, 1962 to date of sentence; that the petitioner has credit for more than 10 years served in the Texas Department of Corrections under said judgment and sentence; and that Article 1163, V.A. P.C., provides a maximum punishment of 10 years confinement for the offense of which appellant was convicted.

Judge Zimmermann concluded as a matter of law that inasmuch as the petitioner has already served more than the maximum sentence prescribed for such offense, he is entitled to the relief for which he prays.

The trial court’s findings are supported by the record. The application for writ of habeas corpus is granted, and the petitioner is ordered released from confinement under his conviction in Cause Number D-9538-J in Criminal District Court No. 3 of Dallas County, Texas.

It is so ordered.