
    Ex parte CLOPP.
    (No. 11636.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    1. Habeas corpus <§=>30 (3) — One convicted of driving automobile while intoxicated held not entitled to discharge on habeas corpus for conviction of misdemeanor under indictment for felony.
    One convicted of driving an automobile while intoxicated held not entitled to discharge from custody on writ of habeas corpus on ground that he was convicted of misdemeanor under indictment for felony; conviction and sentence being for felony.
    2. Habeas corpus <§=>85(l) — Burden is on applicant for habeas corpus to show illegal confinement.
    Burden is on applicant for discharge from custody on writ of habeas corpus to show his illegal confinement.
    3. Habeas corpus <§=>113(12) — In absence of showing of amount of costs or custody for sufficient time to discharge them, remand of applicant for habeas corpus must be assume,d correct.
    In absence of any showing in record as to amount of costs, or whether applicant for ha-beas corpus had been in custody- sufficient time to discharge fine and costs, "appellate court must assume correctness of district court’s action in remanding applicant to sheriff’s custody.
    Appeal from • District Court, Rockwall County; Joel R. Bond, Judge.
    Application by F. L. Clopp for a writ of habeas corpus to the Sheriff of Rockwall County. From a judgment remanding applicant to the sheriff’s custody, he appeals.
    Affirmed.
    H. M. Wade, of Rockwall, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ■LATTIMORE, J.

Upon the hearing of an application for habeas corpus, sought to relieve' the appellant from restraint and confinement under and by virtue, of a judgment and sentence for the felony offense of driving an automobile upon a public road while intoxicated, appellant was remanded to the custody of the sheriff of Rockwall county, and brings this appeal.

From the statement of facts it appears that appellant was convicted in the district epurt on October 26, 1927, and his punishment fixed at a fine of $100. There is some reference in the statement of facts to an affidavit made by appellant of his inability to pay the fine and costs, but said affidavit does not appear in the record anywhere. The testimony of the sheriff and his return shows that he has appellant in custody under said judgment and sentence.

Appellant briefs this case upon a mistaken idea. He asserts that he was indicted for a felony and convicted of a misdemeanor. Such is not the case. The conviction was for a felony, and sentence was pronounced for the same offense. We are unable, from the meager record before us, to determine whether appellant was wrongfully remanded or not. There is some statement in appellant’s brief about much of the costs having been paid, but same finds no support otherwise than the statement in the brief. There is nothing by which we may be informed as to the amount of the court costs, and we cannot tell from the record whether appellant has been in custody a sufficient length of time to have discharged the fine and costs. In the absence of some facts discharging the burden upon appellant to show his illegal confinement, we assume the correctness of the action of the court below in remanding appellant.

The judgment is affirmed.  