Public-domain · open source
OpenJurist

535 S.W.2d 190

Savant v. State

Court of Criminal Appeals of Texas

Decided April 7, 1976

Court of Criminal Appeals of Texas · decided 1976-04-07

Key passage — most relied on by later courts

“[I]t is considered and adjudged by the Court that the Defendant is guilty as charged in the [indictment] of the offense of Driving While Intoxicated and [the Court] assesses his punishment at a fine of $500.00 and 30 days confinement in the Colorado County Jail, together with all costs in this behalf incurred. It appearing to the Court, however, that before this trial Defendant made application in writing and under oath to the Court for probation herein; and it further appearing to the Court that Defendant satisfies the requirements of the Misdemeanor Probation Law of Texas and that the ends of justice and the best interests of society and of the Defendant will be served by granting probation in this cause. IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years from this date.”

quoted by 3 later decisions, including McFarland v. State, State v. Kindred

“A "judgment” is the declaration of the court entered of record, showing: 9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury ...”

quoted by 1 later decision, including Jones v. State

Relies on Woods v. State · Faurie v. State · McIntosh v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1976-04-07

How this case has been cited

Cited by 23 later decisions — most recently April 2010

23 state decisions

11019761980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

ONION, Presiding Judge.

¶2 Appellant was convicted by a jury for assault with a prohibited weapon. The jury assessed punishment at five (5) years and recommended probation pursuant to Art. 42.12, Vernon’s Ann.C.C.P. This attempted appeal followed, but we have concluded that same must be dismissed.

¶3 Although a judgment is not entered in a misdemeanor case where probation is granted, 1 one is required to be entered in a felony case where probation is granted, Scott v. State, 461 S.W.2d 619 (Tex.Cr.App.1971). See and compare Art. 44.08(b), Vernon’s Ann.C.C.P., and Steffen v. State, 525 S.W.2d 162 (Tex.Cr.App.1975). Such judgment must contain the requisites of Art. 42.01, Vernon’s Ann.C.C.P.; and, it is essential that such judgment appear in the record; otherwise, the appeal must be dismissed. Art. 40.09, Sec. 1, Vernon’s Ann. C.C.P.; Scott v. State, supra.

¶4 Art. 42.01, supra, provides, in part:

“A ‘judgment’ is the declaration of the court entered of record, showing:
… *
9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; .
10. That the defendant be punished as has been determined.”

¶5 The instrument in this record styled “judgment” does not contain the ninth and tenth requisites of Art. 42.01, supra. 2 In fact, such instrument contains language to the contrary. It states, in part:

“It is therefore CONSIDERED, ORDERED and ADJUDGED that the Verdict and finding of guilty herein shall not *192 be final, that no Judgment be rendered thereon, . . .”

¶6 Consequently, we have concluded that such instrument does not comport with Art. 42.-01, supra, and Art. 40.09, Sec. 1, supra. Accordingly, the appeal must be dismissed.

¶7 If a correct judgment was in fact rendered, but was incorrectly entered on the minutes of the court, such judgment may now be entered nunc pro tunc pursuant to Art. 42.06, Vernon’s Ann.C.C.P., under the procedure outlined in Shaw v. State (Tex.Cr.App., No. 51,701, delivered February 11, 1976). If a correct judgment was not, in fact, rendered, the same may now be rendered and entered of record in the presence of appellant and his counsel, after notice and hearing. 3 Appellant may then give notice of appeal pursuant to Art. 44.08 (b), supra, 4 and the appeal proceed under the appropriate sections of Art. 40.09, Vernon’s Ann.C.C.P. 5

¶8 The appeal is dismissed.

1

¶9 . See Art. 42.13, Sec. 4, Vernon’s Ann.C.C.P.; Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App. 1973); Coby v. State, 518 S.W.2d 829 (Tex.Cr. App.1975); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App., No. 51,574, delivered March 17, 1976).

2

¶10 . See Longoria v. State, 44 S.W. 1089 (Tex.Cr. App.1898); McCuin v. State, 86 Tex.Cr.R. 497, 217 S.W. 1038 (1920).

3

¶11 . Such judgment should include the terms and conditions of probation.

4

¶12 . Caveat: See and compare Steffen v. State, supra; Faurie v. State, 528 S.W.2d 263 (Tex.Cr. App.1975); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App. 1976); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App. No. 51,574, delivered March 17, 1976).

5

¶13 . The parties may of course waive the times provided in Art. 40.09, supra, see Art. 1.14, Vernon’s Ann.C.C.P., and the appeal can be immediately returned to this Court. Such waiver should be contained in the record returned to this Court.

/535/sw2d/190 · .json · Public domain