Dullnig v. State
504 S.W.2d 495
Tex. Crim. App.
1974
Check Treatment

Steve DULLNIG, Appellant, v. The STATE of Texas, Appellee.

No. 46954.

Court of Criminal Appeals of Texas.

Jan. 23, 1974.

Rehearing Denied Feb. 13, 1974.

495 S.W.2d 495

And Jerry changed lawyers, and he changed defenses.”

Appellant complains that these remarks related unsworn statements of fact outside the record which were calculated to inflame the minds of the jury.

Defense witnesses Donna Lee Smith and Judy Smith had testified that appellant was with them in their apartment on the night of the robbery. In its cross-examination, the State was permitted without objection to establish that neither woman had testified at appellant‘s first trial. Donna Lee Smith answered “No” to the State‘s question, “You and Jerry Lee Johnson hadn‘t dreamed up this alibi when that first hearing was held at that time, had you?” The State had also established that appellant was represented by different counsel at the first trial. The complained of remarks by the assistant district attorney were about statements in evidence, and therefore present no error.

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.

Appellant in two grounds of error contends that the trial court erred in admitting certain testimony about his identification by the victims shortly after the robbery and the introduction of evidence that appellant committed an extraneous offense by knowingly using a stolen credit card obtained during the robbery.

The record shows that no objection to such testimony was made during trial and it is first raised on appeal. The error complained of was not preserved.

;
;
. See also
, and
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We have considered the additional ground of error raised in appellant‘s pro se supplemental brief and find it to be without merit.

There being no reversible error, the judgment is affirmed.

Bill Bender, Seguin, for appellant.

Jim D. Vollers, State‘s Atty., and Buddy Stevens, Asst. State‘s Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This appeal is taken from a conviction for the offense of possession of a dangerous drug, to-wit, phencyclidine. Punishment was assessed at five years’ confinement.

Before we can reach the merits of this appeal, we are faced with a jurisdictional problem. The record reflects that the appellant gave notice of appeal after the judgment was rendered but some fourteen days before sentence was pronounced. Such notice of appeal was ineffective.

;
;
. Further, the record does not show that notice of appeal was again given after sentence was pronounced.

However, one issue must be taken care of at this point. The record reflects that while this appeal was pending the appellant applied for re-sentencing under Sec. 6.01(c) of the Controlled Substances Act; the trial court granted the motion and the appellant was assessed a five-year probated sentence. In light of

we must conclude that such action was null and void and the original sentence remains unaffected.
.

The appeal is dismissed.

DOUGLAS, Judge (concurring in part and dissenting in part).

I concur that the appeal should be dismissed.

However, to the dictum in that part of the majority opinion which notes that the trial court had no authority to resentence under Section 6.01(c), I disagree for the reasons stated in the dissent in

. I am still of the opinion that the Legislature had authority to provide for resentencing while the case was in the trial court.1

Notes

1
If notice of appeal was given after sentence was pronounced but was omitted from the record, the trial court will have authority to set aside the conviction and grant a new trial once the dismissal of the appeal becomes final.