Ex Parte Johnson

¶1OPINION

¶2This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, V.A.C.C.P.

¶3Appellant filed a pro se application for writ of habeas corpus in the trial court. No evidentiary hearing was held. The trial judge found no controverted, previously unresolved facts material to the legality of applicant’s confinement and recommended to this court that relief be denied. The record was forwarded to this court.

¶4Applicant contends he is illegally confined in the Department of Corrections by virtue of a conviction for forgery by passing in Cause No. 298,435 in the 208th District Court of Harris County, that at the time of his conviction on February 22,1980, *402the trial court was without jurisdiction over the cause as he had been previously convicted of the same offense and that conviction was pending in the Court of Criminal Appeals.

¶5On April 17, 1978, applicant was indicted for forgery by passing in Cause No. 278,097 in Harris County in the 230th District Court. Trial was had upon this indictment on October 2 and 3, 1978. Following the jury’s guilty verdict, punishment was assessed by the court at seven (7) years’ imprisonment. On October 20, 1978, sentence was imposed and notice of appeal was given. The record was ordered transferred to the Court of Criminal Appeals on July 19, 1979. It was received by this court and filed on August 28, 1979 and given our Cause No. 62,428.

¶6On July 9, 1979, applicant was re-indicted for the same forgery by passing offense in Cause No. 298,435 in the said 208th District Court.1 Two prior felony convictions were alleged for enhancement of punishment. This was 10 days prior to the order in Cause No. 278,097 transferring the appellate record.

¶7While the first conviction was pending appeal in this court, it appears that appellant filed in the trial court in Cause No. 278,097 an “Original Out of Time Motion for New Trial” on October 12,1979. On the same date the motion was granted. The State then moved to dismiss the indictment in Cause No. 278,097 and it was dismissed. A supplemental transcript was forwarded to this court.

¶8The enhancement paragraphs of the indictment in Cause No. 298,435 were abandoned by the State, and on February 22, 1980, the applicant entered a plea of guilty before the court to forgery by passing charged in Cause No. 298,435. Punishment was assessed at three years’ imprisonment. Sentence was pronounced on the same date. No appeal was taken.

¶9On June 9, 1982, a panel of this court reversed appellant’s first conviction in our Cause No. 62,428 (Trial Court No. 278,097) in an unpublished per curiam opinion. The basis of the reversal was a fundamentally defective indictment. McFarland v. State, 605 S.W.2d 904 (Tex.Cr.App.1980).

¶10There can be no question that at the time of appellant’s second conviction in the trial court his first conviction for the same offense, though not final, was pending on appeal in the Court of Criminal Appeals.

¶11Article 44.11, V.A.C.C.P., 1965, in effect at the time of the transfer of the appellate record, provided in part:

“Upon the appellate record being filed in the Court of Criminal Appeals, all further proceedings in the trial court, except as to bond as provided in Article 44.04 and the proceedings in Article 40.09, shall be suspended and arrested until the judgment of the Court of Criminal Appeals is received by the trial court.... ” (Emphasis supplied.)

¶12Obviously the trial court was without jurisdiction to grant a new trial and dismiss the indictment in Cause No. 278,097 after the appellate record had been filed in this court. See Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982); Page v. State, 532 S.W.2d 341 (footnote # 1) (Tex.Cr.App.1976); Montes v. State, 503 S.W.2d 241 (Tex.Cr.App.1974); Carrillo v. State, 480 S.W.2d 612 (Tex.1972).

¶13Whether the court sua sponte granted a new trial or whether it took such action upon the motion or request of the applicant would not call for a different result. Cf. Wilson v. State, 562 S.W.2d 477 (Tex.Cr.App.1978). The court was simply without jurisdiction. The attempt to re-try the appellant upon a new indictment, while there was an outstanding conviction for the same offense on appeal, was a nullity. Once this court has acquired jurisdiction, it is only by judgment of this court that jurisdiction is restored to the district court. State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974).

¶14It of necessity follows that the second conviction of the applicant in Cause No. *403298,435 must be set aside. See Ybarra v. State, supra.

¶15The relief prayed for by the applicant is granted.2 The Clerk of the court will furnish the Department of Corrections a copy of this opinion.