Clark v. State

442 S.W.2d 353 (1969)

Bobby CLARK, Appellant, v. The STATE of Texas, Appellee.

No. 42162.

Court of Criminal Appeals of Texas.

June 4, 1969.

W. Ralph Mann, Denton, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

ONION, Judge.

The offense is forgery; the punishment, assessed by the jury, three years' confinement in the Texas Department of Corrections.

We observe at the outset that we are confronted in the case at bar with problems similar to that recently discussed in Adams v. State, 440 S.W.2d 844; Gonzales v. State, 440 S.W.2d 847 and McDonald v. State, 442 S.W.2d 352.

The record reflects the sentence in the case at bar was pronounced on June 26, 1968, the same day the case was tried and the judgment entered. The sentence is silent as to any waiver of the ten days in which to file a motion for new trial or in arrest of judgment. A sentence is not to be entered until after the expiration of the time allowed for making such motions *354 unless there is a waiver of such period. See Art. 42.03, Vernon's Ann.C.C.P. In the case at bar a motion for new trial was filed on July 5, 1968. Such motion was overruled on July 26, 1968, and on August 2, 1968, the appellant gave notice of appeal.

If the sentence was improperly and untimely pronounced without a waiver by the appellant of the time in which to file a motion for new trial or in arrest of judgment, then there is no proper sentence in the case and this Court is without jurisdiction to hear this appeal. If sentence was properly entered on June 26, 1968, then the notice of appeal was not given within the ten days therefrom as prescribed by Art. 44.08, V.A.C.C.P. and there is nothing in the record to show that the court for good cause shown permitted the giving of such notice after the ten days allowed had expired.

For either of the reasons stated, this appeal should be dismissed. See Adams v. State, supra; Gonzales v. State, supra; McDonald v. State, supra.

The appeal is dismissed.