Miller v. State

479 S.W.2d 285, 1972 Tex. Crim. App. LEXIS 2120

• Court: Court of Criminal Appeals of Texas
• Decided: May 3, 1972
• Docket: No. 45372
• Status: Published

Opinion

OPINION

DALLY, Commissioner.

The conviction is for the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated; the punishment, five days confinement in the Dallas County Jail and a fine of $250.00.

The State has filed a motion requesting the dismissal of this appeal because the notice of appeal was not timely made or in the alternative, the sentence was prematurely pronounced, contrary to Articles 42.03, 40.05 and 41.02, Vernon’s Ann.C.C.P.

The appellant, represented by retained counsel, waived a jury trial and entered a plea of guilty before the court on October 7, 1971. After finding the appellant guilty, the court pronounced sentence on the appellant on the same day. The sentence does not, but a separate instrument filed the same day recites that the appellant waived the ten days provided for the filing of a motion for new trial and requested that he be sentenced immediately.

Without the sentence being vacated, the appellant filed a motion for new trial and an amended motion for new trial. On November 12, 1971, an order was entered by the court denying appellant’s motion for new trial. The appellant was not resen-tenced. Written notice of appeal was made and filed on November 12, 1971.

Since notice of appeal was not given and filed within ten days after sentence was pronounced as required by Article 44.08, V.A.C.C.P. and the record does not show that the trial court, after good cause shown, extended the time for filing notice of appeal, the State’s motion will be granted and the appeal will be dismissed. See Robinson v. State, 450 S.W.2d 645 (Tex.Cr.App.1970); Stuart v. State, 445 S.W.2d 743 (Tex.Cr.App.1969), and Cook v. State, 434 S.W.2d 133 (Tex.Cr.App.1968).

It is so ordered.

Opinion approved by the Court.