OPINION
Thе conviction is under Art. 802, Vernon’s Ann.P.C., for the misdemeanor offense of driving while intoxicated; the punishment, thrеe days in jail and a fine of $125.
Trial was before the court on appellant’s plea of guilty. Judgment was rendered on December 9, 1965.
Motion for new trial was filed on December 20, 1965, and was overrulеd on January 10, 1966.
The order overruling the motion for nеw trial recites that the defendant in open сourt excepted and gave notice of appeal; and that he had theretofore entered into a bail bond guaranteeing his аppearance in the cause. The court found such bond to be sufficient and no further bond was required of the defendant for this appeаl.
The clerk was directed to preparе a record in the cause in accordаnce with Art. 40.09 of the Code of Criminal Procedure, sаid record to be prepared within 90 days.
The оrder further recites: “The defendant waived his right to be present for sentencing.”
The record on appeal does not include a sentence pronounced by the court, as required by Art. 40.09(1) C.C.P.
Notice of appeal having heen given аfter January 1, 1966, the preparation of the rеcord and pronouncement of sentenсe is governed by the 1965 Code. Ross v. State, Tex.Cr.App.,
Art. 42.02 provides:
“A ‘sentence’ is the order of the court in a fеlony or misdemeanor case made in the рresence of the defendant, exceрt in misdemeanor cases where the maximum pоssible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same tо be carried into execution in the manner рrescribed by law.”
Art. 42.03 C.C.P. provides, in part, as follows:
“If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the рresence of the defendant at any time after the expiration of the time allowed for making the motion for a new trial or the motion in аrrest of judgment * *
Art. 42.04 C.C.P. provides that sentence shall nоt be pronounced pending an appeal from a death penalty, but that in all other сases except where imposition, of sеntence has been suspended in probatiоn cases “sentence shall be pronounсed before the appeal is taken.”
Art. 42.14 рrovides that the judgment and sentence in a misdemeanor case may be rendered in the absence of the defendant.
Without a sentence, this court is without jurisdiction of the appeal.
The appeal is dismissed.
Opinion approved by the Court.