Fleming v. State

419 S.W.2d 379, 1967 Tex. Crim. App. LEXIS 820

• Court: Court of Criminal Appeals of Texas
• Decided: October 11, 1967
• Docket: No. 40562
• Status: Published

Opinion

OPINION

ONION, Judge.

The conviction is for Sale of Intoxicating Liquor in a Dry Area; the punishment, three (3) months in jail and a fine of $200.-00.

Sentence was pronounced and notice of appeal was given October 31,1966.

The record on appeal has not been prepared and approved as required by Article 40.09, Vernon’s Ann.C.C.P.

It appears there was no court reporter, and the trial judge prepared the statement of facts after the parties were unable to agree upon the same, but this fact, even coupled with the court’s refusal to grant a new trial and allow the defendant to withdraw his notice of appeal, does not comply with the requirements of Article 40.09(7), V.A.C.C.P., that the “entire record” be approved by the court. See Johnson v. State, Tex.Cr.App., 420 S.W.2d 728.

The time for filing the defendant’s brief, in which he must assign his grounds of error, does not begin to run until the approval of the record by the court. Article 40.09, Sec. 9, V.A.C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may be had in the trial court under Article 40.09, supra, after such approval as though the record had not been filed in this Court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.