Walker v. State

571 S.W.2d 166, 1978 Tex. Crim. App. LEXIS 1478

Opinions

OPINION

ROBERTS, Judge:

This is an attempted appeal from a conviction for aggravated assault, enhanced by one prior felony conviction. V.T.C.A., Penal Code, Section 12.42(a). We dismiss the appeal.

On June 17, 1976, the appellant was tried by a jury which returned a verdict of guilty. On June 18, 1976, after the appellant pleaded true, to the enhancement portion of the indictment, the jury assessed the appellant’s punishment at six years’ confinement in the Texas Department of Corrections. On June 28, 1976, the trial judge sentenced the appellant and notice of appeal was given.

Article 42.03(1), Vernon’s Ann.C.C.P., states in part that:

“Sec. 1. If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced ... at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” (Emphasis added)

Article 40.05, Vernon’s Ann.C.C.P., states in part that:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury . .”

Finally, Article 41.02, Vernon’s Ann.C. C.P., provides that a motion in arrest of judgment “must be made within ten days after conviction.”

In Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), we stated that:

“Within the meaning of these statutes, an adjudication of guilt does not amount to a ‘conviction.’ A conviction for the purposes of these statutes is an adjudication of guilt plus an assessment of punishment. The reason is that a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces. Hence, the ten-day waiting period following conviction before which sentence may not be pronounced, absent a waiver by the defendant, commences to run when punishment is assessed subsequent to a finding of guilt.”

In the present case, a verdict of guilt was returned by the jury on June 17,1976. The judgment reflects that the jury assessed punishment on June 17, 1976. However, the transcription of the court reporter’s notes of the penalty stage of the trial clearly reflect that the jury did not assess the appellant’s punishment until June 18,1976.¹ Thus, since a “conviction” for the purposes of the foregoing is an adjudication of guilt plus an assessment of punishment, the appellant was not convicted until June 18, 1976. On June 28,1976, the tenth day after the appellant’s conviction, the trial judge pronounced the appellant’s sentence. However, the record does not reveal that the appellant affirmatively waived his right to file a motion for new trial or motion in arrest of judgment during the remaining portion of June 28, 1976. Therefore, the imposition of sentence on June 28, 1976, was one day premature and we are without jurisdiction to entertain this appeal. Faurie v. State, supra.

Sentence may now be pronounced and the appellant may give notice of appeal. If notice of appeal is given, proceedings may be had in the trial court pursuant to Article 40.09, Vernon’s Ann.C.C.P.

The appeal is dismissed.

1 . The judgment should be corrected to reflect that the jury assessed the appellant’s punishment on June 18, 1976.