Proctor v. State

465 S.W.2d 759

• Court: Court of Criminal Appeals of Texas
• Decided: April 20, 1971
• Docket: 43461
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for assault with intent to murder without malice where following a verdict of guilty the court assessed the punishment at three years.

The record reflects that sentence was pronounced on January 14, 1970. The only notice of appeal in the record reflects such notice was filed on January 26, 1970.

Article 44.08, Vernon’s Ann.C.C.P., provides that except in cases where the death penalty has been assessed or probation granted, notice of appeal shall be given or filed within ten days after sentence is pronounced. See Section (c) thereof. Section (e) of such statute provides that “For good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days.”

It is clear that notice of appeal was not given or filed within the time prescribed by statute, and nothing in the record reflects that the trial court for good cause shown permitted a belated notice of appeal.

Therefore this appeal must be dismissed. Nix v. State, Tex.Cr.App., 433 S.W.2d 710 and authorities there cited.

It is observed that upon a showing of good cause, the trial court in the case at bar may still permit the giving of notice of appeal, and in such event, proceedings may then be had in the trial court pursuant to Article 40.09, V.A.C.C.P. See Herbort v. State, Tex.Cr.App., 422 S.W.2d 456; Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854; Flores v. State, Tex.Cr.App., 419 S.W.2d 202.

In the event that the trial court does permit the giving of notice of appeal under Section (e) of Article 44.08, supra, then this indigent appellant must be furnished a complete record on appeal. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

Even if timely notice of appeal had been given in the case at bar, this court would have been unable to have passed on the sole ground of error presented in light of the partial record brought forward. Under any circumstances, the appeal would have to have been abated until a complete record was furnished.

For the reasons stated, the appeal is dismissed.