Baker v. State, 45937
| Decision Date | 28 March 1973 |
| Docket Number | No. 45937,45937 |
| Citation | 491 S.W.2d 887 |
| Parties | James Franklin BAKER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ben D. Sudderth, Comanche, for appellant.
Gary R. Price, County Atty., Brownwood, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for aggravated assault upon an officer. Punishment was assessed by the jury at twelve months.
The record before us does not include a judgment in compliance with Article 42.01, Section 9, Vernon's Ann.C.C.P., 1 nor does it include a sentence as required by Article 42.02, V.A.C.C.P. 2
Further, Article 42.04, V.A.C.C.P., requires that sentence be pronounced before an appeal is taken in a case of this nature.
The record on appeal shall include whether designated or not, copies of the judgment and sentence (where required). Article 40.09, Section 1, V.A.C.C.P.
The absence of judgment and sentence in the record before us requires dismissal of the appeal. Black v. State, Tex.Cr.App., 473 S.W.2d 469; Adams v. State, Tex.Cr.App., 440 S.W.2d 844.
If a judgment and sentence were in fact pronounced in the case but there was a failure to enter such judgment and sentence, they may be entered nunc pro tunc. Article 42.06, V.A.C.C.P. If, on the other hand, judgment and sentence were never pronounced, the trial court may now pronounce judgment and sentence, and appeal may be taken therefrom if appellant so desires. DeMary v. State, Tex.Cr.App., 423 S.W.2d 331; Clemons v. State, Tex.Cr.App., 414 S.W.2d 940.
The appeal is dismissed.
Opinion approved by the Court.
1 The pertinent portion of Article 42.01, Section 9, V.A.C.C.P., requires that the judgment in cases of conviction show 'that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury.'
2 Article 42.02, V.A.C.C.P., provides:
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...(Tex.Cr.App.1967); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Black v. State, 473 S.W.2d 469 (Tex.Cr.App.1971); Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973). As to the time for pronouncing sentence in the trial court, Article 42.03, Vernon's Ann.C.C.P., provides in "If a new tr......
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Woods v. State, s. 51004
...Clemons v. State, 414 S.W.2d 940 (Tex.Cr.App.1967); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973); cf. Casias v. State, 503 S.W.2d 262 (Tex.Cr.App.1973). Likewise, it has been held that, in cases where sentence is required, a sentence w......
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...doctrine,' we have no jurisdiction of the appeal of these two counts. See Articles 42.02 and 42.04, Vernon's Ann.C.C.P.; Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973). If proper sentences were in fact pronounced in the case regarding the second and third counts but there was a failure to......