MEANS v. STATE

OPINION

ONION, Presiding Judge.

This is a purported appeal from a conviction for the unauthorized use of a motor propelled vehicle under the provisions of V.T.C.A., Penal Code, § 31.07. Punishment was assessed at three (3) years in the Department of Corrections.

From the record before this court the appeal must be dismissed since the sentence was untimely pronounced.

The record reflects that on July 21, 1976, the appellant, represented by counsel, waived the right to be charged by indictment and was charged by information. He also waived trial by jury and entered a guilty plea before the court. He was admonished by the court as to the consequences of his plea and took the witness stand and made a judicial confession. The court then assessed punishment and stated: "I'll give you ten days before sentencing." This reference apparently meant the ten day period in which to file a motion for new trial (Article 40.05, Vernon's Ann.C.C.P.) or motion in arrest of judgment (Article 41.02, Vernon's Ann.C.C.P.). In the record and dated the same date as the trial (July 21, 1976), is an instrument entitled "Waiver of Motion for New Trial and Right of Appeal."1 Two days later on July 23, 1976, the appellant did file a motion for new trial stating that it was being filed "with leave of the court first had and obtained."

On August 2, 1976 the court sentenced the appellant, but there is no showing that the court overruled the motion for new trial prior to pronouncing sentence.

Article 42.03, § 1, Vernon's Ann.C. C.P., provides that a sentence shall be pronounced "at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment." Article 40.05, supra, and Article 41.02, supra, respectively provide that a motion for new trial and a motion in arrest of judgment must be made ten days after conviction. See Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976). Therefore, sentence is not to be pronounced until after the expiration of the time for filing such motions in absence of a valid waiver of the time in which to file such motions. Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Payne v. State, 471 S.W.2d 815 (Tex.Cr. App.1971). Further, we stated in Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969), that where a motion for new trial or motion in arrest of judgment is timely filed, sentence should not be pronounced until such motions have been overruled following a hearing or by operation of law or unless the motion or motions are withdrawn accompanied by a waiver of any unexpired time in which to file another such motion. See Adams v. State, supra; Carpenter v. State, 541 S.W.2d 446 (Tex.Cr.App.1976).

In the instant case sentence was pronounced on August 2, 1976 without any showing the court overruled the motion for new trial or that the motion was withdrawn. The timely motion for new trial would not have been overruled by operation of law until August 12, 1976, twenty days after it was filed. St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). The sentencing having been improperly and untimely pronounced without the timely filed motion for new trial having been overruled by action of the court or by operation of law and at a time when the motion had not been withdrawn,2 the sentence is voidable and the appeal must be dismissed. See Ex parte Shields, 550 S.W.2d 670 (Tex.Cr. App., Opinion on State's Motion for Rehearing, May 18, 1977). Upon receipt by the District Clerk of our mandate of dismissal, the procedure to be followed is that discussed in Woods v. State, supra; Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976); Middleton v. State, 537 S.W.2d 25 (Tex.Cr. App.1976).

It is observed that appellant's appointed counsel on appeal has filed a brief in which he concluded the appeal is wholly frivolous and without merit. Following the issuance of the mandate of dismissal, counsel should brief the question of whether waiver of an indictment for the offense of theft of property of $200 or more but less than $10,000, see V.T.C.A., Penal Code, § 31.03(d)(4), will justify the filing of an information, without indictment, charging the offense of unauthorized use of a motor propelled vehicle. See V.T.C.A., Penal Code, § 31.07. Further, counsel should brief the question of the significance of the decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), might have in light of the plea bargain agreement reflected by the record before us.

Following the issuance of the mandate of dismissal the trial court maintains its right to grant a new trial under Article 40.09, Vernon's Ann.C.C.P.

For the reasons stated, the appeal is dismissed.

ODOM, Judge.

I concur in the dismissal of this appeal. Because the sentence was untimely pronounced, this Court is without jurisdiction. Although the majority decline to expressly acknowledge that lack of jurisdiction is the cause for dismissal, the fact of dismissal in this case necessarily implies a lack of jurisdiction because no lesser defect would support our action.

The Constitution of Texas mandates this Court's appellate jurisdiction:

The Legislature, acting pursuant to the power granted by this provision, has created a statutory right of appeal in Art. 44.02, V.A.C.C.P., which provides:

Only jurisdictional defects can defeat a defendant's right to have his appeal heard by this Court. In Chumbley v. State, 137 Tex.Cr.R. 491, 132 S.W.2d 417 (1939) it is written:

In Young v. State, 172 S.W.2d 500 (Tex.Cr. App.1943), the Court stated:

The majority opinion, by a careful choice of words, has dismissed this appeal without expressly acknowledging our lack of jurisdiction:

The fact of dismissal, however, necessarily means we are without jurisdiction, because to dismiss this case if we did have jurisdiction would be a violation of this Court's constitutional mandate to hear all appeals where our jurisdiction is invoked (unless subsequently waived) and would be a denial of appellant's statutory right to have his appeal heard today, and of his constitutional rights to due process and equal protection of the laws.

The exercise of this Court's appellate jurisdiction is not a matter of discretion.1 The absence of discretion in this matter, and the constitutional powers, duties, and rights involved in the determination of whether dismissal will be ordered, further underscore the finding of lack of jurisdiction upon which the dismissal of this appeal necessarily rests.

If the majority dispute this conclusion, let them inform the citizens of Texas and our bench and bar on what grounds this Court may refuse to hear this appeal in the face of jurisdiction to hear it. Their failure to do so, and the very disposition of this case, acknowledge the validity of the dissent in Ex parte Shields, supra, on motion for rehearing, and the unanimous majority in that case on original submission. The majority in Shields on rehearing, however, declined even to address the issue before the Court in that case, although that issue was stated quite plainly by the petitioner therein, as set out in the dissenting opinion on rehearing. If this Court had the power to hear Shields' original appeal, as assumed by the majority on rehearing in that case, then the Court has the power to hear appellant's appeal in this case. That we do not hear it shows we may not hear it. The dismissal of this case, therefore, is either on jurisdictional grounds or is in flagrant disregard of this Court's constitutional mandate and appellant's rights. The presumption should be that this Court today acts in accordance with its constitutional duties and, therefore, that it today orders this dismissal on jurisdictional grounds.

On this basis, I concur in the dismissal.