McKinney v. State

Annotate this Case

477 S.W.2d 295 (1972)

Howard McKINNEY, Appellant, v. The STATE of Texas, Appellee.

No. 44465.

Court of Criminal Appeals of Texas.

March 8, 1972.

*296 Bowen C. Tatum, Jr., Huntsville, for appellant.

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

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for assault with intent to murder without malice. Trial was before a jury, which assessed punishment at confinement for three years.

The record on appeal has not been prepared and approved as required by Article 40.09, § 7, Vernon's Ann.C.C.P.

The endorsement of the presiding judge approving the statement of facts and ordering the same filed does not comply with the requirements of Art. 40.09, § 7, V.A.C.C.P., that the record, as defined in Art. 40.09, § 1, V.A.C.C.P., be approved by the trial court.

Also, a supplemental statement of facts has been filed which bears no approval by the trial court, and no evidence of notice to either party appears therein. This filing does not comply with Art. 40.09, § 1, and § 7.

The appellant's brief is not before this Court, in that the time for filing the brief does not begin to run until after the approval of the record by the trial court. Art. 40.09(9), V.A.C.C.P.

The appeal will be abated to await the approval of the entire record and such further proceedings as may be had in the trial court under Art. 40.09, supra, after such approval, as though the record had not been filed in this Court. Posas v. State, 463 S.W.2d 735 (Tex.Cr.App.1971); Bell v. State, 434 S.W.2d 684 (Tex.Cr.App.1968); St. John v. State, 421 S.W.2d 661 (Tex.Cr. App.1967); Johnson v. State, 420 S.W.2d 728 (Tex.Cr.App.1967); Fleming v. State, 419 S.W.2d 379 (Tex.Cr.App.1967); Trussell v. State, 419 S.W.2d 378 (Tex.Cr.App. 1967); Stoker v. State, 415 S.W.2d 923 (Tex.Cr.App.1967).

It is so ordered.