Martin v. State

ON MOTION FOR REHEARING

BEAUCHAMP, Judge.

The questions raised on original submission were properly disposed of in the opinion. On motion for rehearing our attention has been called to a defect in the judgment which is not in compliance with Article 784 of the Code of Criminal Procedure.

The effort to write the judgment, shown on page 10 of the transcript, recites that the case was called for trial; that both parties appeared and announced ready; that defendant pleaded not guilty; that a jury of six men was selected and sworn; that they heard the information read and the plea and, after hearing the evidence and the charge of the court, retired to consider of their verdict. Thereafter they returned a verdict which says: “We, the jury find the defendant Adolph Martin guilty as charged in the information and assess his punishment at one year in jail. (Signed) L. C. Groves, Foreman.”

Article 784 of the Code of Criminal Procedure reads as follows : “If the punishment is any other than a fine, the judgment shall specify it, and order it enforced by the proper process. It shall also adjudge the costs against the defendant, and order the collection thereof as in other cases.” The purported judgment before us does not attempt to comply with the statute. It is no judgment at all. This court has frequently reformed judgments which failed in some respects to be entered in accordance with the jury’s verdict, but the power to reform does not carry with it the power to enter a judgment. Only the trial court can do that. See Ex parte Leachman, 150 Tex. Cr. Rep. 145, 199 S. W. 2d 661.

A proper order would have been for this court to dismiss the appeal until a final judgment has been entered. Appellant’s motion for rehearing is granted and the appeal is now dismissed.