Garbs v. State

DAVIDSON, Judge. In March, 1950, appellant pleaded guilty before the court to the felony offense of driving while intoxicated, and his punishment was fixed at confinement in the penitentiary for one year. The imposition of sentence upon that judgment was by the trial court suspended, and appellant was placed upon probation, under the power and authority conferred by Art. 781b, *291 Vernon’s Code of Criminal Procedure, known as the Adult Probation and Parole Law. About two months thereafter, the trial court, upon motion of the district attorney, revoked the probation. The judgment of revocation recites that “the defendant is hereby sentenced to serve one (1) year in the penitentiary of the State of Texas.” Unless the language just above quoted constitutes a sentence, within the meaning of the law, the record does not reflect that sentence has been passed upon the appellant. A sentence is the order of the court, made in the presence of the defendant and entered of record, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law. Art. 767, C. C. P. There appears no fixed or inflexible form to be used for the sentence. The one mandatory provision is that it “shall be pronounced in the presence of the defendant. . . .” Art. 768, C. C. P. There is nothing in this record showing that this mandatory provision of the statute was complied with. The order revoking the probation and attempting to pronounce sentence nowhere contains a recital that same was done in the presence of the appellant. We are constrained to conclude that, as here presented, no sentence has been pronounced against appellant, as required by law. A sentence in a felony case is the final judgment, and necessary for the jurisdiction of this court over the appeal. Support-, ing authorities will be found under Note 3 of Art. 769, Vernon’s C. C. P. Because this court is without jurisdiction to entertain the appeal, the appeal is dismissed. Opinion approved by the court.