Opinion
No. 67969.
July 1, 1981.
Appeal from the 54th Judicial District Court, McLennan County, Walter S. Smith, Jr., J.
W. V. Dunnam, Jr., Waco, for appellant.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
Before us is a petition for issuance of writ of habeas corpus in which petitioner alleged that the indictment underlying his felony conviction for theft in Cause No. 76-171-C in the trial court is void. This case is a companion to The State of Texas v. Charlie Gene Payne, Cause No. 76-189-C in the trial court in that the indictment and all other papers are alike, except for name, and the causes were consolidated for trial that reached the same result as to punishment with recommendation for and grant of probation for both accused.
The sole issue raised for our determination is the same just now decided this day by the Court in Ex parte Payne, 618 S.W.2d 380 (Tex.Cr.App., 1981). Thus, petitioner is entitled to relief from the void conviction.
Accordingly, the writ is granted; the judgment and the order granting probation in trial Cause No. 76-171-C are vacated and set aside, and the indictment in that cause is dismissed. Petitioner is therefore released from custody and every manner of restraint in his personal liberty as a consequence of that conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Judge of the 54th Judicial District Court of McLennan County, as well as the Juvenile and Adult Probation Officer of McLennan County.
See Articles 11.64, supra, and 11.21, V.A.C.C.P. for definition of "constructive custody;" Ex parte Guzman, supra.
It is so ordered.