Burns v. State

Full title: James M. BURNS, Appellant, v. The STATE of Texas, Appellee

Court: Court of Criminal Appeals of Texas

Date published: Jan 17, 1968

422 S.W.2d 451 (Tex. Crim. App. 1968)

Opinion

No. 40835.

November 29, 1967. Rehearing Denied January 17, 1968.

Appeal from 105th Judicial District Court, Nueces County, J. D. Todd, J.

No Attorney of record on appeal, for appellant.

Sam L. Jones, Jr., Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Sodomy; the punishment, seven (7) years confinement in the Texas Department of Corrections.

Trial commenced before a jury on May 1, 1967, with appellant being represented by employed counsel of his own choice. After a verdict of guilty, punishment was assessed by the court at the request of the appellant. Sentence was pronounced on May 15, 1967, and notice of appeal was given on that date, at which time appellant was represented by different counsel, but also one of his own choice. No question of indigency appears. The record shows that appellant has been enlarged on an appeal bond with sureties.

On August 9, 1967, the district clerk notified appellant's counsel by certified mail of completion of the record. See Article 40.09, Sec. 7, Vernon's Ann.C.C.P. On August 25, 1967, the trial court approved the record, noting that no objections had been offered thereto. Within thirty (30) days after the approval of the record by the court, the defendant failed to file his appellate brief in the trial court assigning his grounds of error. Nothing in the record indicates that the trial court granted an extension of time in which to file such a brief.

On October 9, 1967, the State filed its brief noting that the appellant had failed to file its brief in the trial court. A copy of such brief was personally delivered to appellant's counsel.

Thereafter the trial court, noting that the appellant had failed to file a brief in the trial court, performed the duty required of him in accordance with Article 40.09, Sec. 12, V.A.C.C.P., and such record was transmitted to this Court.

Upon receipt of the record the Clerk of this Court notified appellant's counsel of the date of submission of this cause and requested that he notify the Court if he desired oral argument. No response was received.

No brief having been filed by the appellant in the trial court and this Court having found no unassigned error in its examination of this 191 page record which in the interest of justice we would be called upon to review, the judgment is affirmed.