Ex Parte Shields

550 S.W.2d 670

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 1977
• Docket: 53479
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted for driving an automobile without the owner’s consent. His punishment was assessed at two years’ imprisonment. He appealed his conviction and we affirmed the cause in a per curiam opinion. (Cause No. 44,907)

Petitioner urges that we erred in affirming his conviction because we did not have jurisdiction over his cause at the time it was appealed. This assertion is predicated on the fact that the trial court prematurely and improperly pronounced sentence in violation of Art. 40.05 and Art. 42.03, V.A.C. C.P. Specifically, the trial court did not afford the petitioner ten days to file a motion for new trial before sentence was pronounced.

In order to address this claim, we must first review the circumstances surrounding his conviction and subsequent appeal to this Court.

On April 5,1971, the trial court found the petitioner guilty. Petitioner then made application for probation. This application was denied by the court on May 6, 1971. On the same day, the trial court pronounced sentence. On December 14, 1971, the judgment of conviction was affirmed by this Court and the contention urged in this appeal was not raised at that time.

Our mandate was issued on December 30, 1971. This was received by the convicting court on January 31, 1972. A capias was soon issued pursuant to our mandate, but it was not executed until May 1, 1976.

We initially observe that the petitioner did not waive the time permitted him to file a motion for new trial. This is reflected by the record and also by the findings of fact made by the judge at the evidentiary hearing conducted on petitioner’s application for post-conviction relief.

If we did not have jurisdiction to affirm the conviction, the decision rendered in regard to the appeal is void.

We conclude that the petitioner did not waive the time allowed by Art. 40.05, supra. The fact that over thirty days elapsed between the court’s determination of guilt and the imposition of sentence is not controlling because the petitioner applied for probation. In Woods v. State, Tex.Cr.App., 532 S.W.2d 608, we stated:

“ . . . 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.” 532 S.W.2d at 612.

In the case at bar, the trial court imposed sentence on the same day it denied probation. This action violated the provisions of Art. 40.05 and Art. 42.03, supra, because no waiver was entered by petitioner.

Our affirmance of petitioner’s conviction was incorrect because 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 the appeal.

We hold that the petitioner is entitled to relief. Since we did not have jurisdiction to affirm petitioner’s conviction, our mandate in regard to his cause must be quashed. Any warrant issued in compliance with our mandate, therefore, is also quashed.

The petitioner’s request for relief is granted. Petitioner must be given an opportunity, as provided by Art. 40.05, supra, to file a motion for new trial. The trial court may then enter the sentence.

It is so ordered.

OPINION