Gordon v. State
| Decision Date | 27 January 1982 |
| Docket Number | No. 61665,No. 2,61665,2 |
| Parties | David Neil GORDON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
James L. Cutcher & Leland R. Enochs, Taylor, for appellant.
Edward J. Walsh, Dist. Atty. and Edgar A. Nooning, III, Asst. Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and McCORMICK, JJ.
This is an appeal from a conviction for burglary of a habitation, where the punishment was assessed by the jury at five (5) years' imprisonment.
At the outset we are confronted with a question of jurisdiction called to our attention by the State in its brief filed in the trial court in accordance with Article 40.09, V.A.C.C.P.
The jury returned its verdict on July 27, 1978. On August 7, 1978, the appellant filed a motion for new trial. 1 On August 17, 1978, prior to the motion for a new trial being ruled on by the court or overruled by operation of law, appellant was sentenced. On August 23, 1978, the appellant filed a written notice of appeal. On August 31, 1978, the appellant was permitted by the court to file an amended motion for new trial. On that date the court overruled that motion. On September 7, 1978, appellant was again sentenced. No notice of appeal, oral or written, was given after this second sentence.
Article 44.08, V.A.C.C.P., provides in pertinent part:
"(e) For good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days." (Emphasis supplied.)
It has been held that notice of appeal is untimely if filed before the disposition of a motion for new trial by action of the court or by operation of law. Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973). Further, it has been held that a notice of appeal given before a valid sentence is ineffective. Dullnig v. State, 504 S.W.2d 495 (Tex.Cr.App.1974); Ex parte Bradley, 546 S.W.2d 305 (Tex.Cr.App.1977).
It is well settled that a sentence is untimely pronounced when a timely filed motion for new trial has not been overruled by action of the court or by operation of law. Such a sentence is voidable and an appeal therefrom will be dismissed. Means v. State, 552 S.W.2d 166 (Tex.Cr.App.1977); Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976). In Means v. State, supra, this court wrote:
(Footnote omitted.)
In the instant case the timely filed motion for new trial was still pending at the time of the first sentence on August 17, 1978. It had not been acted upon by the court, had not been overruled by operation of law, and had not been withdrawn. The sentence of August 17th was...
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