McDaniel v. State

Court of Criminal Appeals of Texas

McDaniel v. State

447 S.W.2d 910

CourtCourt of Criminal Appeals of Texas

DecidedDecember 10, 1969

DocketNo. 42462

StatusPublished

Cited by1 cases

This text of 447 S.W.2d 910 (McDaniel v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDaniel v. State, 447 S.W.2d 910 (Tex. 1969).

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Opinion

OPINION

BELCHER, Judge.

The offense is breaking and entering an automobile with intent to commit theft; the punishment, three years.

The record reflects that on August 1, 1968, the appellant was brought to trial, found guilty by a jury, and his punishment was assessed by the court. On the same day the appellant was sentenced, and in open court he gave notice of appeal to the Court of Criminal Appeals. On August 7, 1968, the appellant filed his motion for a new trial which was overruled by operation of law.

The record does not reflect that the appellant waived his 10 days allowed for making the motion for a new trial or the motion in arrest of judgment; it appears, therefore, that the sentence was untimely and improperly entered. Where the sentence has been improperly and untimely entered, this Court is without jurisdiction to entertain an appeal. For want of a proper sentence, the appeal is dismissed. Art. 42.03, Vernon’s Ann.C.C.P.; Art. 42.-04, Vernon’s Ann.C.C.P.; Posas v. State, Tex.Cr.App., 443 S.W.2d 849; Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.

The appeal is dismissed.

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OPINION

BELCHER, Judge.

The offense is breaking and entering an automobile with intent to commit theft; the punishment, three years.

The record reflects that on August 1, 1968, the appellant was brought to trial, found guilty by a jury, and his punishment was assessed by the court. On the same day the appellant was sentenced, and in open court he gave notice of appeal to the Court of Criminal Appeals. On August 7, 1968, the appellant filed his motion for a new trial which was overruled by operation of law.

The record does not reflect that the appellant waived his 10 days allowed for making the motion for a new trial or the motion in arrest of judgment; it appears, therefore, that the sentence was untimely and improperly entered. Where the sentence has been improperly and untimely entered, this Court is without jurisdiction to entertain an appeal. For want of a proper sentence, the appeal is dismissed. Art. 42.03, Vernon’s Ann.C.C.P.; Art. 42.-04, Vernon’s Ann.C.C.P.; Posas v. State, Tex.Cr.App., 443 S.W.2d 849; Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.

The appeal is dismissed.

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Bluebook (online)

447 S.W.2d 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-state-texcrimapp-1969.

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