Ross v. State

363 S.W.2d 944, 1963 Tex. Crim. App. LEXIS 1080

• Court: Court of Criminal Appeals of Texas
• Decided: January 16, 1963
• Docket: No. 35230
• Status: Published

Opinion

BELCHER, Commissioner.

The conviction is for procuring; the punishment, two months in jail and a fine ■ of $75.

It'appears from the record that this case was filed in the County Court of Hale County, and that the trial on the merits was had before Judge C. L. Abernethy the regular judge of the County Court of Hale County.

The record further shows that the motion for a new trial in this case was heard by Frank R. Day, Special County Judge of Hale County; that he heard the evidence submitted thereon and refused the motion to which action of. the Special Judge, the appellant in open court excepted and gave notice of appeal.

The record fails to show the mode of the selection as prescribed by statute of the special judge that heard and refused the motion for a new trial, and before whom notice of appeal was given and recognizance entered. It also fails to show that he took the oath of office as required by Art. 555, Vernon’s Ann.C.C.P. 33 Tex.Jur.2d 460, Sec. 85; 1 Branch 2d 320, Sec. 278; Baker v. State, 159 Tex.Cr.R. 130, 261 S.W. 2d 593; Parish v. State, Tex.Cr.App., 268 S.W.2d 149; West v. State, Tex.Cr.App., 358 S.W.2d 132

For the reasons pointed out the judgment is reversed and the cause remanded.

Opinion approved by the Court.