Ex parte Posey , 1970 Tex. Crim. App. LEXIS 1428 ( 1970 )

OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding instituted pursuant to Art. 11.07 Vernon’s Ann.C.C.P. attacking a life sentence for cattle theft in Cause No. 7102 in the District Court of Parker County, appeal from which conviction was dismissed by. this court in Posey v. State, Tex.Cr.App., 373 S.W.2d 248.

After a hearing, Hon. W. A. Hughes, Jr., Judge of said Court, found that one of the two prior convictions for a felony less than capital used to enhance the punishment was void, and that petitioner has credit for more than 10 years (the maximum punishment for cattle theft) on the sentence enhanced to life imprisonment under Art. 63 P.C., and concluded that petitioner should be discharged from confinement forthwith.

The prior conviction which Judge Hughes found to be void was a conviction in Cause No. 2557, in the District Court of Jack County for burglary on June 7, 1955, upon an indictment which alleged the burglary of a house “on or about the 13th day of December, 1955” (a date subsequent to the date of the conviction).

The record and the authorities sustain the findings and conclusions of the District Judge. See Gaines v. State, Tex.Cr.App., 269 S.W.2d 679.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement under the life sentence in Cause No. 7102 in the District Court of Parker County, Texas.