Beaver v. State

Appellant contends in his motion for rehearing that the opinion of the Court on original submission was in error in holding that the law by which his appeal is controlled is that in effect at the date the judgment was rendered and became final in the trial court. He cites the case of McKennon v. State, 42 Tex.Crim. R., 60 S.W. 41, in support of his contention. That case involved the giving of retroactive effect to a statute which by its very terms applied 'to all cases now pending in county courts and the courts of criminal appeals.' This Court there gave literal effect to the statute in a case which was then pending in this Court on appeal, thereby giving the appellant the benefit of the change in the law pending appeal. No such situation exists in the instant case.

Article 1.02, Vernon's Ann.C.C.P. of 1965 reads as follows: 'This Code shall take effect and be in force on and after January 1, 1966. The procedure herein prescribed shall govern all criminal proceedings instituted after the effective date of this Act and all proceedings pending upon the effective date hereof Insofar as are applicable.'

Appellant urges that this Article requires that the provisions of the Code of Criminal Procedure of 1965 be applied to the manner by which he gave notice of appeal. We do not so construe the Article and adhere to our view that the applicable rule by which the appeal of this case is to be governed is that which was in effect both at the time the judgment was rendered and at the time appellant attempted to give notice of appeal. See Holdman v. State, Lugo v. State, Tex.Cr.App., 398 S.W.2d 769.

Article 44.08, V.A.C.C.P. of 1965 states that notice of appeal 'shall be given and filed within ten days after sentence is pronounced.' *Page 843

The record in the instant case contains no sentence, such not being provided for in misdemeanors until the effective date of the new code. See Article 42.02, V.A.C.C.P.

Remaining convinced that we correctly decided the case originally, the appellant's motion for rehearing is overruled.