Middleton v. State, 51515
Decision Date | 19 May 1976 |
Docket Number | No. 51515,51515 |
Citation | 537 S.W.2d 25 |
Parties | Roy Lee MIDDLETON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
John Mustachio, Houston, for appellant.
Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an attempted appeal from a conviction for attempted murder. Punishment was assessed at five (5) years.
On January 21, 1975, appellant waived trial by jury and entered a plea of guilty before the court. Because of an application for probation, a pre-sentence investigation was ordered. On March 7, 1975, the court assessed punishment and immediately imposed sentence.
In his first ground of error, appellant contends that he was deprived of his right to file a motion for new trial within ten days after punishment was assessed. We agree.
In Woods v. State, 532 S.W.2d 608, 611--612 (Tex.Cr.App.1976), we held as follows:
'We hold that the time to file a motion for new trial or motion in arrest of judgment does not begin to run so long as an application for probation is pending without determination by the trial court. Stated another way, even though a penalty has been announced, yet an application for probation is under consideration by the trial court, 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. This is so because 'a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces.' Faurie v. State, 528 S.W.2d (263,) 265 (Tex.Cr.App.1975).
'The only remaining question is the posture these cases must assume when they return to the trial court.
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Ex parte Shields
...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 ......
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Means v. State
...to be followed is that discussed in Woods v. State, supra; Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976); Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.1976). It is observed that appellant's appointed counsel on appeal has filed a brief in which he concluded the appeal is wholly frivolo......
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Housewright v. State
...Neither Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976), nor Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.1976), is contrary to today's decision. In Faurie, we noted that the record in that case did not affirmatively show a waiver of the......
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Lovett v. State, 58565
...waiver, and furthermore is in conflict with the true proceedings reflected in the transcribed court reporter's notes. Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.). Although the record shows that a motion for new trial was filed and a hearing on it was conducted, those proceedings occurre......