Dullnig v. State

504 S.W.2d 495, 1974 Tex. Crim. App. LEXIS 1486

Opinions

OPINION

ROBERTS, Judge.

This appeal is taken from a conviction for the offense of possession of a dangerous drug, to-wit, phencyclidine. Punishment was assessed at five years’ confinement.

Before we can reach the merits of this appeal, we are faced with a jurisdictional problem. The record reflects that the appellant gave notice of appeal after the judgment was rendered but some fourteen days before sentence was pronounced. Such notice of appeal was ineffective. Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967) ; Smith v. State, 424 S.W.2d 228 (Tex.Cr.App.1968); Ex Parte Vestal, 468 S.W.2d 372 (Tex.Cr.App.1971). Further, the record does not show that notice of appeal was again given after sentence was pronounced.

However, one issue must be taken care of at this point. The record reflects that while this appeal was pending the appellant applied for re-sentencing under Sec. 6.01(c) of the Controlled Substances Act; the trial court granted the motion and the appellant was assessed a five-year probated sentence. In light of Giles v. State, 502 S.W.2d 774 (Tex.Cr.App. delivered December 5, 1973) we must conclude that such action was null and void and the original sentence remains unaffected. Montes v. State, 503 S.W.2d 241 (Tex.Cr.App. delivered Jan. 9, 1974).

The appeal is dismissed.