White v. State

410 S.W.2d 440, 1966 Tex. Crim. App. LEXIS 1148

• Court: Court of Criminal Appeals of Texas
• Decided: June 1, 1966
• Docket: 39675
• Status: Published

Opinions

OPINION

BELCHER, Commissioner.

The offense is attempted burglary; the punishment, enhanced under Art. 63 P.C., life.

The indictment was returned July 9, 1965. Trial before a jury on a plea of not guilty resulted in a finding of guilty and judgment was rendered upon the jury’s verdict and the court’s finding that the defendant had been twice theretofore convicted of a felony.

Hon. Lee Duggar acted as trial counsel for the defendant.

On January 13, 1966, appellant was sentenced to a life term in the penitentiary. He gave notice of appeal and Hon. Louis S. Aselin of the Harris County Bar was appointed to represent him on appeal.

In his brief filed in this court, appellant’s counsel on appeal presents a number of points of error, among which are that he was denied due process because no statement of facts has been prepared for this appeal.

Appellant recognizes that the preparation of a record on his appeal is governed by Art. 40.09 Vernon’s Ann.Code of Criminal Procedure 1965, which was in effect at the time he gave notice of appeal.

There is no showing in the record that the court reporter was requested to prepare a transcript of his notes for including in the record, nor did appellant’s counsel file in the trial court a motion requesting that he be permitted to withdraw his notice of appeal and be granted a new trial by the trial court, and no brief was filed in the trial court setting forth any ground of error.

This court has authority under Section 13 of said Article 40.09 to review unassigned error.

In the absence of a record on appeal to support it, appellant’s claim that he was denied due process of law is overruled.

The judgment is affirmed.

Opinion approved by the Court.