Mendosa v. State

• Decision Date: 15 December 1926
• Docket Number: (No. 10379.)
• Citation: 290 S.W. 1100
• Parties: MENDOSA v. STATE.
• Court: Texas Court of Criminal Appeals

290 S.W. 1100

MENDOSA v. STATE.

(No. 10379.)

Court of Criminal Appeals of Texas.

December 15, 1926.

Appeal Reinstated January 26, 1927.

Appeal from District Court, Howard County; W. P. Leslie, Judge.

D. L. Mendosa was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

Harper & Howard, of El Paso, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J.

Conviction in district court of Howard county of transporting intoxicating liquor; punishment one year in the penitentiary

The record is before us without any sentence. The entry of a sentence is a prerequisite to an appeal. Hart v. State, 14 Tex. App. 323; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Wooldridge v. State, 61 Tex. Cr. R. 324, 135 S. W. 124. In the absence of a sentence, this court is without jurisdiction to pass upon the questions raised on this appeal.

The appeal is dismissed.

On Motion to Reinstate Appeal.

At a former day the appeal in this case was dismissed because of the absence of a sentence in the record. It is now made to appear that sentence was duly entered, and the record has been corrected.

Two officers were watching two Mexicans whose actions appeared suspicious. An incoming passenger train arrived. One of the Mexicans crawled hastily under the Pullman car. At the same time the white clad legs of another man were observed by said officers on the other side of said Pullman. This man handed to the Mexican a package. The Mexican crawled back to where his companion was waiting. The white clad legs started around the end of the train. The Mexican who crawled under the train was Subia; his companion was the appellant. Subia handed to appellant the package which was later found to be a gallon can of alcohol. A negro porter on the train clad in white clothes came around the end of the train about this time and joined appellant and Subia. They stood and talked a while and then started away, appellant having the can of alcohol. When they had gone 10 or 15 steps, the officers stopped them. When the officers stopped the party, the porter said:

"Cap, I haven't had anything to do with this, only just brought it to these boys; they have been after me so long, begging me to bring this to them; I am not selling it."

Upon examining the can and ascertaining that it was alcohol, the officers arrested the Mexicans and the negro porter and carried them to jail. The officers said the gallon can was practically full of alcohol, which, from taste and smell, they said was alcohol that is drunk as a beverage. Appellant did not testify.

There are a number of bills of exception. Bills Nos. 1 and 2 show appellant's objections to the testimony of the officers that the container had in it alcohol, the objection being that they had not qualified as experts. Both bills are qualified, attention being called to the fact that both officers had sworn that the contents of the can in question was such alcohol that could be drunk as a beverage, and that fact was known to the officers by their having tasted and smelled the contents of the...