
    Ex parte Preston Alvin PUCKETT.
    No. 29687.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1958.
    No attorney for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an original application for habeas corpus under Art. 119 Vernon’s Ann.C.C.P.

Previous applications were denied in Ex parte Puckett, 161 Tex.Cr.R. 51, 274 S.W.2d 696, and Ex parte Puckett, Tex.Cr.App., 301 S.W.2d 649.

Two prior convictions were alleged for enhancement, the first in a State Court in New Mexico on July 3, 1945, and the second in the Federal Court.

The question of the availability of the prior conviction in the Federal Court has not been previously considered except as to whether it was for an offense committed after the conviction in the New Mexico State Court had become final.

The indictment alleged that the second prior conviction was for violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. §§ 2312, 2313.

A Federal conviction used for enhancement purposes under Article 63 Vernon’s Ann.P.C., must be for an offense which is denounced by the laws of Texas as a felony. See Clark v. State, 154 Tex.Cr.R. 581, 230 S.W.2d 234; Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180; Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997.

There is authority holding that a violation of the National Motor Vehicle Theft Act is not available to enhance the punishment under a State statute such as our Article 63, V.A.P.C. People v. Tramonti, 153 Misc. 371, 275 N.Y.S. 517; People v. Sassone, Co.Ct., 12 N.Y.S.2d 473; People ex rel. Goodrich v. Martin, 183 Misc. 790, 50 N.Y.S.2d 388; and People v. Lohr, 28 Cal.App.2d 397, 82 P.2d 615. See also Annotation 19 A.L.R.2d at page 243.

We need not rest our decision upon these authorities alone. If one who violates the National Motor Vehicle Theft Act would, if the act had been committed in Texas, be guilty of receiving stolen property under the laws of this State also, he would not, unless the value of the automobile was $50 or more, be guilty of a felony. See Price v. State, Tex.Cr.App., 308 S.W.2d 47.

We conclude that the prior conviction in the Federal Court was not available to enhance the punishment under Art. 63 Vernon’s Ann.P.C. and that the allegations of the indictment are insufficient to sustain a life sentence.

There is no question but that this Court has the power and authority to prevent the enforcement of a judgment obtained under circumstances which constitute a denial of due process. Ex parte McCune, 156 Tex.Cr.R. 213, 246 S.W.2d 171.

Relator having served the maximum term for a second offense of felony theft, is entitled to his discharge from the penitentiary. Ex parte Daniels, 158 Tex.Cr.R. 2, 252 S.W.2d 586; Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333.

It is so ordered.  