Nicholson v. State

The appeal in this case was dismissed on May 23, 1928, for lack of a sentence, attention being called to the fact that the recognizance was defective. On June 7, 1928, appellant filed his motion to reinstate the appeal on the ground that in a supplemental transcript would be found a sufficient appeal bond, also a sentence duly pronounced. On June 20, 1928, said supplemental transcript was filed in this court, and in same appears a copy of appellant's appeal bond as well as a sentence pronounced by the trial court on June 15, 1928. The trial court was without authority to pronounce such sentence because the case was pending here on appeal on appellant's motion to reinstate. The trial court is without further jurisdiction to make any order save those contemplated in Art. 772 Cow. C. P., until apprised by mandate from this court of the fact that the case has been finally disposed of here. In other words, under Art. 772. C. C. P., as construed by Hinman v. State,54 Tex. Crim. 434, no part of the record in this case being lost or destroyed, an effort to have inserted in the record a sentence entered after the jurisdiction of this court has attached and before the case was finally disposed of here by some proper order, would be of no effect. This in nowise would prevent a sentence in this case, and an appeal then taken, after this case reaches the lower court on this dismissal.

Appellant's motion to reinstate must be overruled for lack of a sentence, and it is so ordered.

Overruled.