(dissenting).
The majority follow their holding in Dewberry v. State, 162 Tex.Cr.R. 160, 283 S.W.2d 399, and in support thereof cite as authority the opinion of Judge Lattimore in Ermis v. State, “intimating that it is the mandatory duty of this Court to dismiss an appeal upon request.” (5 Tex.Jur.2d, Sec. 336, Note 2.)
A distinguishment between this case and the Dewberry case is that Dewberry was permitted to withdraw his notice of appeal in the trial court and he requested that the transcript and statement of facts not be filed. The dissent was based upon the fact that Dewberry was permitted to withdraw his notice of appeal after the term of court at which it was given and entered had expired.
In my dissent in Dewberry v. State, I cited five cases where this Court declined to grant the appellant’s motion to dismiss the appeal because another dispostition was called for. Sanders v. State, 18 Tex.App. 372, was a conviction for murder with life in the penitentiary. The Court of Appeals in an opinion by Presiding Judge White, found error fatal to the conviction; refused to comply with appellant’s request that the appeal be dismissed, stating as reason that Sanders had not been convicted according to law, and reversed the judgment.
Three convictions, upon pleas of guilty to selling whisky in a dry area, were set aside by this Court and the appellant’s motions to dismiss the appeals were refused in Adcock v. State, 152 Tex.Cr.R. 194, 196, 197, 212 S.W.2d 175, 176 and 177. No information having been filed, the judgments were reversed.
In Gaines v. State, 155 Tex.Cr.R. 79, 231 S.W.2d 429, Judge Beauchamp wrote the unanimous opinion. This Court declined to grant the motion of the appellant to withdraw the appeal, and reformed and affirmed the judgment.
The majority opinion is in direct conflict with the cases mentioned.
The punishment which the trial court assessed against the appellant was a fine only. The minimum punishment provided by law for the offense charged and to which appellant pleaded guilty includes a mandatory jail term of not less than 3 days. Art. 802, Vernon’s Ann.P.C.
The trial court was without authority to assess a punishment more or less than that provided by statute. Such a judgment will not be affirmed on appeal. Henderson v. State, Tex.Cr.App., 318 S.W.2d 898; Malone v. State, Tex.Cr.App., 328 S.W.2d 310.
The dismissal of this appeal will leave standing a conviction for drunken driving with no jail term to be served. A reversal will permit another trial at which appellant, if convicted, may be assessed a punishment provided by law for his crime.
I respectfully dissent.