Opinion
[168 TEXCRIM 496] John A. Coffee, Big Spring, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
This is an original application for habeas corpus in behalf of a convict, attacking the judgement of conviction against him as void.
The judgment recites that appellant pleaded guilty to the offense of felony theft and waived a jury trial, and that the trial judge assessed as punishment 'confinement in the State Penitentiary for a term of two to five years.'
Unless there be clerical error in the entry of such judgment, it is void because no definite punishment has been assessed. 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; Ex parte Frazier, 164 Tex.Cr.R. 572, 301 S.W.2d 655; Ex parte Hannen, 155 Tex.Cr.R. 10, 228 S.W.2d 864, 230 S.W.2d 236.
In the absence of a definite punishment being assessed, the maximum term to be stated in the sentence could not be ascertained.
The application is granted. Relator is ordered relieved from further confinement in the penitentiary and delivered to the custody of the Sheriff of Hill County, Texas, to answer in the District Court of said county to the indictment in Cause No. 20,709 under which the conviction was had.