Lovett v. State

571 S.W.2d 194, 1978 Tex. Crim. App. LEXIS 1298

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape; punishment was assessed by the court at twelve years.

We are confronted at the outset with defects in the record that require dismissal. The sentence was pronounced immediately upon the heels of assessment of punishment without waiver of the time allowed by statute for motion for new trial or in arrest of judgment. Although the docket sheet and form sentence recite “ten days time waived,” this is not sufficient to reflect the required 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 occurred before assessment of punishment and therefore before entry of judgment. The time for those proceedings is after judgment and before sentence. See Art. 40.05, V.A.C.C.P.; Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.); Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.).

Because the sentence was pronounced too soon, the appeal must be dismissed. Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.); Woods, Faurie, Middleton, all supra. After proper time for motion for new trial has passed and any such motion disposed of, timely sentence should be pronounced and notice of appeal may be given.

The appeal is dismissed.