Adams v. State

on state’s motion to dismiss appeal.

DAVIDSON, Judge.

Appellant was convicted in the district court of Bexar County for the offense of felony theft. From that conviction he appealed, and the case became No. 24,492 on the docket of this court.

The judgment of conviction was on the 23rd day of November, 1949, affirmed and, thereafter, appellant’s motion for rehearing was, on January 11, 1950, overruled — all as reflected by the opinion of this court reported in (page 63 of this volume) 225 S. W. 2d 568.

The mandate of this court issued on the 13th day of January 1950, upon said affirmance, and appellant surrendered himself into the custody of the state penitentiary authorities to serve the sentence imposed.

Thereafter, it was discovered that the judgment entered in the trial court was irregular because the punishment assessed therein was for an indeterminate period. (Ex parte East, 154 Texas. Crim. Rep. 123, 225 S. W. 2d 833)

Seeking to correct this defect in the judgment, the district attorney of Bexar County, on March 9, 1950, filed a motion in the trial court to have this judgment corrected by a nunc pro tunc order.

On March 13, 1950, appellant being present in person and by counsel, the trial court entered the order as prayed for by state’s counsel and validated as of that date by order nunc pro tunc the defective judgment, and on the same day the sentence was reimposed in accordance with the corrected judgment.

From this judgment of the trial court correcting by nunc pro tunc order the judgment and sentence, this appellant gave notice of appeal to this court. It is this appeal which the state seeks now to dismiss, because of the following facts:

On April 12, 1950, and subsequent to the nunc pro tunc judgments and notice of appeal just above mentioned, this court, upon its own motion, entered an order recalling the mandate theretofore issued, in order to determine the sufficiency of the judgment and sentence. Appellant was ordered released upon his bond, pending final determination of the appeal.

On April 26, 1950, this court corrected the defective judgment to conform to the verdict of the jury, as reflected by the opinion of this court reported in (page 71 of this volume) 229 S. W. 2d 64. This judgment finally disposed of the case.

All matters here involved having been finally determined, this appeal should be and is dismissed.

Opinion approved by the court.