The appeal is from a conviction for felony theft with ten years sentence in the penitentiary.
The State's evidence is sufficient to sustain the conviction. Appellant was found in possession of the property, admitted his guilt and showed the officers where a portion of the same was hidden. He made no denial of his guilt and offered no evidence in his behalf.
The only bill of exception in the case complains of the introduction of the records showing former convictions for felonies in other counties. The record discloses that such convictions were shown for a person of the same name, in accordance with the allegations in the first count of the indictment. No proof was made that appellant was the same person.
There was a second count in the indictment which alleged the commission of the felony described the same as that in the first count, but it does not allege the former convictions. When the evidence was closed the court submitted the case to the jury on the second count only. The verdict was rendered accordingly and gave appellant the maximum penalty of ten years. We held in Rodgers v. State, 137 Tex.Crim. R., 131 S.W.2d 766, in an identical situation, that no error was committed.
We observe that in sentencing the defendant the court failed to apply the indeterminate sentence law in that he was sentenced to serve not less than ten years and not more than ten years. The sentence is reformed so as to commit him for a term of not less than two years nor more than ten years.
We find no reversible error and the judgment of the trial court is accordingly affirmed. *Page 657