DeMary v. State

423 S.W.2d 331

• Court: Court of Criminal Appeals of Texas
• Decided: January 31, 1968
• Docket: 40879
• Status: Published

Opinions

OPINION

DICE, Judge.

The conviction is for negligent homicide in the first degree; the punishment, a fine of $1,000.

The record on appeal does not include a sentence pronounced by the court, as required by Art. 40.09-1, C.C.P.

Art. 42.02, C.C.P., provides that a sentence must be pronounced and entered of record in every felony case and in every misdemeanor case except where the maximum possible punishment is by fine only.

Art. 42.04, C.C.P., requires that sentence be pronounced before an appeal is taken in a case of this nature.

If a sentence was in fact pronounced in the case but there was a failure for some reason to enter such sentence, it may be entered nunc pro tunc. Art. 42.06, C.C.P. If, on the other hand, no sentence was ever pronounced, the trial court may now pronounce sentence and appellant may then appeal from that sentence if he so desires. Clemons v. State, Tex. Cr.App., 414 S.W.2d 940, 941.

The appeal is dismissed.