Lonnie CLEMONS, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 40287.
Court of Criminal Appeals of Texas.
April 12, 1967.
Motion to Reinstate Appeal Denied May 17, 1967.
415 S.W.2d 940
In paragraph 3 of the charge, the court instructed the jury that it could not consider the evidence of appellant‘s prior misdemeanor conviction for driving while intoxicated “as in any manner proving or tending to prove that the defendant did or did not drive a motor vehicle upon a public highway while under the influence of intoxicating liquor on or about the 2nd day of October, 1965.”
In paragraph 4 of the charge, the jury was instructed that if it found and believed from the evidence beyond a reasonable doubt that on or about October 2, 1965, appellant drove and operated a motor vehicle upon a public road while intoxicated and further found from the evidence beyond a reasonable doubt that he had theretofore been convicted of the misdemeanor offense of driving while intoxicated charged in the indictment, to find him guilty of a felony, as charged in the indictment.
The court‘s instruction in paragraph 3 properly limited the jury‘s consideration of the evidence introduced relative to appellant‘s prior conviction. The instruction in paragraph 4 was a proper application of the law to the facts. The instructions, as given, were not contradictory and conflicting as to the burden of proof, as contended by appellant.
We perceive no fundamental error in the charge which would call for a reversal of the conviction.
We overrule appellant‘s remaining ground of error, #5, in which he insists that the court committed reversible error “in failing to grant a hearing on appellant‘s application for probation and in not considering said application or ruling thereupon.”
While the record reflects that after return of the jury‘s verdicts in the case appellant made his application for probation of sentence, there is no showing that the court failed or refused to grant a hearing thereon or to consider the same. It was within the court‘s discretion to grant or to deny appellant‘s application for probation.
The judgment is affirmed.
Wm. H. Hamblen, Edna, for appellant.
Sam L. Gayle, Jr., County Atty., Edna, and Leon B. Douglas, State‘s Atty., Austin, for the State.
PER CURIAM.
The conviction is for a violation of the liquor laws; with punishment assessed at a fine of $500.
Notice of appeal was given after January 1, 1966.
The record on appeal does not include sentence pronounced by the court, as required by
The appeal is dismissed.
OPINION ON APPELLANT‘S MOTION TO REINSTATE APPEAL
ONION, Judge.
In dismissing his appeal, appellant insists that the Court overlooked the sentence contained in the record. The instrument to which he now directs our attention is the judgment of the Court, not the sentence. Since the effective date of the 1965 Code of Criminal Procedure, a sentence must be pronounced in every felony case and in every misdemeanor case, except where the maximum possible punishment is by fine only.
We observe that the written notice of appeal contained in the record expressly states that sentence was imposed. If such a sentence was pronounced and entered of record, but was not included in the record on appeal as required by
If a sentence was in fact pronounced in the case at bar but there was a failure for some reason to enter such sentence it may be entered nunc pro tunc.
If, on the other hand, no sentence was ever pronounced, the trial court may now pronounce sentence and appellant may then appeal from that sentence if he so desires.
Appellant‘s motion to reinstate his appeal is overruled.