Ex parte Shields

• Decision Date: 22 December 1976
• Docket Number: No. 53479,53479
• Citation: 550 S.W.2d 670
• Parties: Ex parte Leroy Anthony SHIELDS.
• Court: Texas Court of Criminal Appeals

Page 670

550 S.W.2d 670

Ex parte Leroy Anthony SHIELDS.

No. 53479.

Court of Criminal Appeals of Texas.

Dec. 22, 1976.

On Rehearing May 18, 1977.

Lawrence Beauchamp, San Antonio, for appellant.

Ted Butler, Dist. Atty., Susan D. Reed and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted for driving an automobile without the owner's consent. His punishment was assessed at two years' imprisonment. He appealed his conviction and we affirmed the cause in a per curiam opinion. (Cause No. 44,907)

Petitioner urges that we erred in affirming his conviction because we did not have jurisdiction over his cause at the time it was appealed. This assertion is predicated on the fact that the trial court prematurely and improperly pronounced sentence in violation of Art. 40.05 and Art. 42.03, V.A.C.C.P. Specifically, the trial court did not afford the petitioner ten days to file a motion for new trial before sentence was pronounced.

In order to address this claim, we must first review the circumstances surrounding his conviction and subsequent appeal to this Court.

On April 5, 1971, the trial court found the petitioner guilty. Petitioner then made application for probation. This application was denied by the court on May 6, 1971. On the same day, the trial court pronounced sentence. On December 14, 1971, the judgment of conviction was affirmed by this Court and the contention urged in this appeal was not raised at that time.

Our mandate was issued on December 30, 1971. This was received by the convicting court on January 31, 1972. A capias was soon issued pursuant to our mandate, but it was not executed until May 1, 1976.

We initially observe that the petitioner did not waive the time permitted him to file a motion for new trial. This is reflected by the record and also by the findings of fact made by the judge at the evidentiary hearing conducted on petitioner's application for post-conviction relief.

If we did not have jurisdiction to affirm the conviction, the decision rendered in regard to the appeal is void.

We conclude that the petitioner did not waive the time allowed by Art. 40.05, supra. The fact that over thirty days elapsed between the court's determination of guilt and the imposition of sentence is not controlling because the petitioner applied for probation. In Woods v. State, Tex.Cr.App., 532 S.W.2d 608, we stated:

" . . . the time for filing a motion for new trial or motion in arrest of judgment does not begin to run until the date the court either grants or denies probation." 532 S.W.2d at 612.

In the case at bar, the trial court imposed sentence on the same day it denied probation. This action violated the provisions of Art. 40.05 and Art. 42.03, supra, because no waiver was entered by petitioner.

Our affirmance of petitioner's conviction was incorrect because we did not have jurisdiction to entertain the appeal due to the premature imposition of sentence by the trial court. Middleton v. State, Tex.Cr.App., 537 S.W.2d 25; Mendez v. State, Tex.Cr.App., 535 S.W.2d 365; Woods v. State, supra. Our only proper action in such a situation is to dismiss the appeal.

We hold that the petitioner is entitled to relief. Since we did not have jurisdiction to affirm petitioner's conviction, our mandate in regard to his cause must be quashed. Any warrant issued in compliance with our mandate, therefore, is also quashed.

The petitioner's request for relief is granted. Petitioner must be given an opportunity, as provided by Art. 40.05, supra, to file a motion for new trial. The trial court may then enter the sentence.

It is so ordered.

OPINION

ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding which was filed and submitted. On original submission this court held that the sentence imposed in 1971 was untimely pronounced and, though this question was not raised, this court did not have jurisdiction to affirm the direct appeal in 1971. The affirmance was set aside, the mandate withdrawn and the cause was remanded to the trial court for re-sentencing. On rehearing the State vigorously urges that the sentence was voidable only, not void, and hence not subject to collateral attack. We agree and grant the State's motion for rehearing.

The record reflects that the petitioner entered a plea of guilty before the court to the offense of driving a motor vehicle over the value of $200.00 without the owner's consent on April 5, 1971. Punishment was assessed at two years' imprisonment, and the judgment was entered. In view of petitioner's motion for probation, the court caused a pre-sentence report to be made. On May 6, 1971 the court denied the motion for probation and imposed sentence on that date. ¹ The record reflects no objection by petitioner or his retained counsel to the court imposing sentence, and sentence shows that when the petitioner was asked whether he had anything to say why sentence should not be pronounced against him "he answered nothing in bar thereof." See Article 42.07(3), Vernon's Ann.C.C.P.

Notice of appeal was given by retained counsel and appellant was released on bond pending appeal. There was no attempt to have the sentence set aside for the purpose of filing motions for new trial or in arrest of judgment. On December 14, 1971 the judgment of conviction was affirmed by this court in a per curiam opinion in Cause No. 44,907. The appellate record consisted only of the clerk's transcript. There was no transcription of the court reporter's notes. The opinion noted that no brief had been filed on appellant's behalf setting forth grounds of error as required by Article 40.09, Vernon's Ann.C.C.P. No question of indigency was presented.

The mandate of this court was issued on December 30, 1971. A file mark was placed thereon by the convicting court on January 31, 1972, and a capias issued on February 2, 1972. For reasons not explained, it was not executed until May 1, 1976.

On May 14, 1976 appellant filed in the convicting court a post-conviction application for habeas corpus, followed by an amended application on May 17, 1976. Appellant contended that since there was no waiver of the time in which to file a motion for new trial or in arrest of judgment he had been deprived of an opportunity to file such motions, that sentence was untimely pronounced, and that the Court of Criminal Appeals should have dismissed his appeal rather than having affirmed it. He also contends that he had been deprived of the effective assistance of counsel on appeal and subjected to cruel and unusual punishment. Following an evidentiary hearing the proceedings were forwarded to this court. See Article 11.07, Vernon's Ann.C.C.P. The trial court found that the record did not reflect a waiver of the ten days in which to file the motions for new trial or in arrest of judgment.

As earlier noted, this court on original submission of this habeas corpus proceeding agreed with appellant's contention that the sentence was untimely pronounced, depriving him of an opportunity to file motions for new trial or in arrest of judgment, although to this date appellant has never advanced any grounds that could be advanced to support such motions. The State on rehearing has urged that we reconsider our holding and the cases upon which it was based. We shall do so.

A sentence, as defined by Article 42.02, Vernon's Ann.C.C.P., is required to be pronounced in all cases where sentences are applicable before an appeal is taken, except in death penalty cases and in probation cases where imposition of sentence is suspended. See Article 42.04, Vernon's Ann.C.C.P. In all cases where a sentence is required to be pronounced before an appeal is taken, such sentence must be included in the appellate record. Article 40.09, § 1, Vernon's Ann.C.C.P. Where the sentence does not appear in the appellate record, this court is without jurisdiction and the appeal must be dismissed. See, e. g., Clemons v. State, 414 S.W.2d 940 (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 part:

"If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant except when his presence is not required by Article 42.02 at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment. . . .." (Emphasis supplied.)

Article 40.05, Vernon's Ann.C.C.P., provides that a motion for new trial shall be filed 10 days after conviction, and Article 41.02, Vernon's Ann.C.C.P., provides that a motion in arrest of judgment must be made within 10 days after conviction.

It is clear from these statutes that the sentence should not be pronounced until after the expiration of the time for filing such motions. If no such motions are filed within the time period prescribed, then sentence may be pronounced. See Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969). If such motions are timely filed, sentence should not be pronounced until such motions have been overruled following a hearing or by operation of law.

None of the above does not mean a defendant may not after conviction waive such time allowed by law to file the above described motions and agree to accept imposition of sentence at an earlier time. See Article 1.14, Vernon's Ann.C.C.P.; Adams v. State, supra.

In Adams v. State, supra, in which sentence was pronounced the same day the case was tried and judgment entered, there the court wrote in an opinion on direct...