Mendez v. State, 51756
| Decision Date | 14 April 1976 |
| Docket Number | No. 51756,51756 |
| Citation | 535 S.W.2d 365 |
| Parties | Alex R. MENDEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joe Daniel Stokes, III, Austin, Court appointed, for appellant.
Robert O. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
This is an appeal from a conviction for possession of heroin; the court assessed punishment at imprisonment for 25 years.
There is a jurisdictional problem which requires that this appeal be dismissed. The record reflects that appellant was indicted on December 11, 1973, for possessing heroin on April 26, 1973, with two prior convictions alleged for enhancement of punishment. On January 28, 1974, appellant entered a plea of guilty to the primary charge; the State thereafter waived the enhancement allegations in the indictment. The appellant waived his right to elect to be sentenced under the Texas Controlled Substances Act by failing to so elect by written motion filed with the trial court. See Controlled Substances Act, Sec. 6.01(c); cf. Stephenson v. State, 517 S.W.2d 277 (Tex.Cr.App.1975). The trial court, after admonishing the appellant of the range of punishment for this offense under the former Penal Code, accepted appellant's plea and the appellant made a judicial confession. Assessment of punishment was postponed in order to allow the probation department to conduct a presentence investigation.
On February 14, 1974, the trial reconvened, and without hearing further evidence, the trial court assessed appellant's punishment at imprisonment for 25 years, and immediately thereafter formally sentenced him.
The record before us does not reflect that the appellant voluntarily and knowingly waived his right to file a motion for new trial within the ten days after the assessment of punishment. See Article 42.03, V.A.C.C.P.; Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975). As in Faurie v. State, supra, the form sentence of the court indicating that the appellant 'waived time' is insufficient to show a waiver of this right in the record on appeal. See Article 1.14, V.A.C.C.P. Absent a showing that appellant affirmatively waived the ten days for filing motion for new trial, the imposition of sentence on February 14, 1974, was premature, and we are therefore without jurisdiction to entertain this appeal. See Woods et al. v. State, 532 S.W.2d 608 (Tex.Cr.App.1976); Faurie v. State, supra, and cases cited therein.
The appellant did file a motion for new trial on February 21, 1974, which would have been timely filed had appellant not been formally sentenced on February 14, 1974. Therefore, we conclude that upon the issuance of this Court's mandate of dismissal the trial court should proceed to consider app...
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Ex parte Shields
...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 We hold that the petitioner is entitle......
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...a proper judgment in accordance with Article 42.01, V.A.C.C.P. See Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976); Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976). On October 6, 1977 the trial court again had the appellant before the bench and again assessed punishment, both the court ......
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...a proper judgment in accordance with Article 42.01, V.A.C.C.P. See Savant v. State, 535 S.W.2d 190 (Tex.Cr.App. 1976); Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App. 1976). On October 6, 1977, the trial court again had the appellant before the bench and again assessed punishment, both the cou......