Black v. State

473 S.W.2d 469 (1971)

Herman Lee BLACK, Appellant,
v.
The STATE of Texas, Appellee.

No. 44402.

Court of Criminal Appeals of Texas.

December 14, 1971.

Henry J. McCluskey, Jr., Dallas, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is unlawfully carrying a prohibited weapon; the punishment, a fine of $350.00.

A sentence must be pronounced in every felony case and in every misdemeanor case except where the maximum possible punishment is by fine only. Art. 42.02, Vernon's Ann.C.C.P. Further, the sentence in a case like that at bar shall be pronounced before the appeal is taken. Art. 42.04, V.A.C.C.P.

The record before us does not include a sentence pronounced by the court below as required by Article 40.09, Section 1, V.A.C.C.P. While the record does contain a judgment, it is to be remembered that a sentence is separate and independent. Botley v. State, Tex.Cr.App., 467 S.W.2d 267 (1971). Where a necessary sentence does not appear in the transcript, the appeal will be dismissed. Clemons v. State, Tex.Cr.App., 414 S.W.2d 940 (1967); Hodges v. State, Tex.Cr.App., 417 S.W.2d 178 (1967); Adams v. State, Tex. Cr.App., 440 S.W.2d 844 (1969).

It is so ordered.