Posas v. State

463 S.W.2d 735 | Tex. Crim. App. | 1971

OPINION

MORRISON, Judge.

The offense is aggravated assault on a female child; the punishment, 8 months in jail.

The prior appeal of this conviction was dismissed because the record did not contain a valid sentence. Posas v. State, Tex. Cr.App., 443 S.W.2d 849. The present record shows that on October 28, 1969, the appellant appeared before the judge, of the County Court at Law #1 of Bexar County and was again sentenced in this cause. Notice of appeal was noted on the same date. The sentence has been forwarded to this court as a supplemental transcript. Since the sentence was pronounced on the 28th day of October, 1969, and was not entered nunc pro tunc as of the date of the prior sentence in this cause, which was held to -be invalid, it would appear that the appellant is entitled to the benefits of the procedure outlined in Article 40.09, Vernon’s Ann.C.C.P., for protecting his appeal. The record contains no notice to the appellant of the completion of the record or approval of the record by the trial court. The record also fails to contain any brief by the appellant raising grounds of error in the appeal from the conviction made final by the sentence pronounced October 28, 1969.

Since the requirements of Article 40.09, V.A.C.C.P., have not been followed, this appeal should be abated for further proceedings in the- trial court in compliance with the provisions of said article. St. John v. State, Tex.Cr.App., 421 S.W.2d 661; Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.