Le Bove v. State

HAWKINS, Presiding Judge.

Conviction of appellant is for operating an automobile on a public street in the City of Orange while intoxicated.

Notice of appeal was given on January 23, 1943, and the trial term of court adjourned the same day.

The original transcript contained no judgment of conviction. It .was discovered that no judgment had been entered on the trial court minutes. On June 1, 1943, and while the case was pending on appeal in the Court of Criminal Appeals, appellant sought to have judgment entered nunc pro tunc in the trial court and the judge of said court undertook to so enter said judgment on June 1, 1943, as of date January 21, 1943.

Under the restrictive terms of Art. 828 C. C. P. the trial court was without jurisdiction to enter said judgment while the case was pending here, and could only do so after the jurisdiction of that court had been restored under a mandate from this court. Much has been written on the construction of Art. 828 C. C. P., and suggestions made as to the propriety of amending same in order to meet just such contingencies as here presented. See Allen v. State, 124 Tex. Cr. R. 642, 65 S. W. (2d) 311; Turner v. State, 16 Tex. Cr. R. 319; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668; Acuff v. State, 98 Tex. Cr. R. 71, 260 S. W. 572, 262 S. W. 761; Davis v. State, 120 Tex. Cr. R. 114, 28 S. W. (2d) 794; Nobles v. State, 131 Tex. Cr. R. 514, 100 S. W. (2d) 715; Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982; Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280; Nicholson v. State, 110 Tex. Cr. 112, 7 S. W. (2d) 1076.

It is only necessary to call attention to the foregoing cases without elaborating on the question to demonstrate that the only option this court has is to dismiss the appeal for lack of a legal judgment, and it is so ordered.