McCuin v. State

LATTIMORE, Judge. —Appellant was convicted in the District Court of Henderson County, of theft of cattle, and his punishment fixed at two years in the penitentiary. We are met at the threshold of this case with a motion made, by our Assistant Attorney General to dismiss the appeal, because there appears in the record no final judgment. We are of the opinion that the position taken by the State in this matter is correct. Article 853, of our Code of Criminal Procedure, sets out in detail the matters necessary to constitute a final judgment in a criminal case. By comparison of the judgment appearing on page 5 of the transcript herein, it appears that the requisites contained in subdivisions 9 and 10 of said article are wholly lacking. The failure of the judgment to contain said requisites is fatal to ' * appeal, which can only be from a final judgment. Mirelles v. State, 13 Texas Crim. App., 346; Gaither v. State, 21 Texas Crim. Rep., 527; Longoria v. State, 44 S. W. Rep., 1089. The motion of the State is sustained, and the appeal, accordingly, dismissed. Dismissed.