North v. State

Court of Criminal Appeals of Texas

North v. State

598 S.W.2d 634

CourtCourt of Criminal Appeals of Texas

DecidedDecember 12, 1979

DocketNo. 58515

StatusPublished

This text of 598 S.W.2d 634 (North 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

North v. State, 598 S.W.2d 634 (Tex. 1979).

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Opinion

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at 99 years.

We are met at the outset with a defect in the record that requires this appeal be abated. Article 40.09(1), V.A.C.C.P., requires as a matter of law that the State’s pleading be included in the record on appeal. In this case there is no indictment in the record although the “Order of Presentations of Indictments and Transfers” in the record states that an indictment was returned. Although there is a complaint in the record, there is no felony information and waiver of right to indictment under Art. 1.141, V.A.C.C.P. such as would dispense with the need for an indictment. If there was no indictment or valid felony information, the trial court would have been without jurisdiction and a reversal would be required. See, Lackey v. State, Tex.Cr.App., 574 S.W.2d 97. Because this record indicates that an indictment was returned, we abate this appeal so that a supplemental transcript containing the indictment, or the certificate of the trial court that there was no indictment, may be filed. See, Sheeley v. State, Tex.Cr.App., 530 S.W.2d 108.

It is so ordered.

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OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at 99 years.

We are met at the outset with a defect in the record that requires this appeal be abated. Article 40.09(1), V.A.C.C.P., requires as a matter of law that the State’s pleading be included in the record on appeal. In this case there is no indictment in the record although the “Order of Presentations of Indictments and Transfers” in the record states that an indictment was returned. Although there is a complaint in the record, there is no felony information and waiver of right to indictment under Art. 1.141, V.A.C.C.P. such as would dispense with the need for an indictment. If there was no indictment or valid felony information, the trial court would have been without jurisdiction and a reversal would be required. See, Lackey v. State, Tex.Cr.App., 574 S.W.2d 97. Because this record indicates that an indictment was returned, we abate this appeal so that a supplemental transcript containing the indictment, or the certificate of the trial court that there was no indictment, may be filed. See, Sheeley v. State, Tex.Cr.App., 530 S.W.2d 108.

It is so ordered.

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Bluebook (online)

598 S.W.2d 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-v-state-texcrimapp-1979.

Opinion

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