Parker v. State

336 S.W.2d 431

Tex. Crim. App.

1960

Check Treatment

BILLY E. PARKER V. STATE

No. 31,943

Court of Criminal Appeals of Texas

May 4, 1960

Motion for Rehearing Overruled June 15, 1960

Appellant was convicted in the corporation court of the city of Corpus Christi of a misdemeanor offense and his punishment assessed at a fine of $10.

From the judgement appellant prosecuted an appeal to County Court at Law No. 2 of Nueces County by filing an appeal bond in the corporation court in the penal sum of $50 conditioned that appellant “shall appear before this court from day to dav and from term to term of the same, and not depart without leave of this court, in order to abide the judgment of the County Court at Laws of Nueces County, Texas.”

Motion to dismiss the appeal was filed by the assistant county attorney on the grounds that the appeal bond was not conditioned that the appellant would make a personal appearance before the court to which the appeal was taken.

From the court‘s order sustaining the state‘s motion to dismiss the appeal, appellant prosecutes his appeal to this court. Such an appeal is authorized.

Matula v. State, 72 Tex. Cr. R. 189, 161 S.W. 965.

Art. 833, V.A.C.C.P. provides that in appeals from justice and corporation courts the bond on appeal shall be conditioned that the defendant shall make his personal appearance before the court to which the appeal is taken.

The appeal bond filed by appellant is insufficient because it does not bind him to appear before the court to which the appeal was taken, as required by Art. 833, supra.

In holding the appeal bond insufficient and dismissing the appeal for want of jurisdiction the court did not err.

The judgment is affirmed.

WILLIAM L. PORTER V. STATE

No. 31,809

Court of Criminal Appeals of Texas

May 11, 1960

Motion for Rehearing Overruled June 15, 1960

Clyde W. Woody, Houston 2, for appellant.

Dan Walton, District Attorney, Samuel H. Robertson, Jr., F. Lee Duggan, Jr., Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.

OPINION

BELCHER, Judge

Appellant entered a plea of guilty before the court without a jury to the offense of giving a check in the sum of $17 without sufficient funds, with intent to defraud; and the court assessed his punishment at ten days in jail and a fine of $25.

By his plea of guilty to the misdemeanor offense charged the appellant admitted the truth of all the material averments in the information and it was not necessary that the state introduce evidence showing his guilt. Art. 518, V.A.C.C.P.;

Hunt v. State, 167 Tex. Cr. Rep. 51, 317 S.W. 2d 743; . However, the statement of facts shows that the state introduced sufficient evidence to establish appellant‘s guilt.

For the above reasons, appellant‘s contentions, that the evidence is insufficient to support the conviction and that there is a material variance between the pleadings and the proof are overruled and the judgment is affirmed.

Opinion approved by the Court.

APPELLANT‘S MOTION FOR REHEARING

DICE, Judge

Appellant insists that the record which was before us on original submission incorrectly reflected that he entered a plea of guilty in the cause and that the record has been corrected to show that the plea which was entered by him was that of “Not Guilty.”

By supplemental transcript it is shown that since the delivery of our original opinion, the trial court, on motion of the appellant, has ordered that a corrected judgment be entered nunc pro tunc which judgment recites that appellant entered a plea of not guilty in the cause.

The trial court was without authority to order entry of the corrected judgment nunc pro tunc during the pendency of the appeal. Art. 772, V.A.C.C.P.;

Griggs v. State, 163 Tex. Cr. R. 378, 292 S.W. 2d 126; ; and . Until this appeal has become final, the trial court is without authority to correct the judgment and minutes of the court which forms a part of the record on appeal. and . Under the authorities cited the nunc pro tunc judgment entered in the cause will not be considered.

Remaining convinced that a proper disposition was made of the case in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.