Means v. State

11 Citing cases

  1. Glaze v. State

    675 S.W.2d 768 (Tex. Crim. App. 1984)   Cited 29 times
    Holding that neither court of appeals nor court of criminal appeals has jurisdiction to consider merits of case unless there is a conviction from which to appeal

    Ochoa v. State, 536 S.W.2d 233 (Tex.Cr.App. 1976). In the instant case the trial court permitted the untimely filing of a motion for new trial and correctly set aside the properly imposed sentence previously given. Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977); Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App. 1974). The court then overruled the Motion for New Trial on May 4 and appellant filed notice of appeal on May 12. However, the court never re-imposed sentence after the overruling of the motion for new trial.

  2. Gordon v. State

    627 S.W.2d 708 (Tex. Crim. App. 1982)   Cited 11 times

    It is well settled that a sentence is untimely pronounced when a timely filed motion for new trial has not been overruled by action of the court or by operation of law. Such a sentence is voidable and an appeal therefrom will be dismissed. Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977); Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App. 1976). In Means v. State, supra, this court wrote:

  3. Morales v. State

    587 S.W.2d 418 (Tex. Crim. App. 1979)   Cited 16 times

    Article 40.05, supra, and Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.). If "good cause" is shown and the court agrees to permit the belated filing of a Motion for New Trial where sentence has been pronounced, the sentence should be set aside and an order to that effect entered. Robinson v. State, supra, and Means v. State, 552 S.W.2d 166 (Tex.Cr.App.). In the instant case, the previous sentence was not set aside, nor was good cause shown for the belatedly filed second Motion for New Trial.

  4. Ex Parte Coleman

    599 S.W.2d 305 (Tex. Crim. App. 1979)   Cited 44 times
    Denying rehearing en banc without opinion

    A collateral attack is not allowed because a sentence was pronounced untimely. Ex parte Shields, supra, when it has been considered under Art. 40.09, Sec. 13, V.A.C.C.P. Conaway v. State, 549 S.W.2d 181 (Tex.Cr.App. 1977); Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977). The sufficiency of the evidence will be considered on appeal, but not in a habeas corpus proceeding.

  5. Ex Parte Coleman

    574 S.W.2d 164 (Tex. Crim. App. 1978)   Cited 2 times

    Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App. 1977); Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App. 1967). A collateral attack is not allowed because a sentence was pronounced untimely Ex parte Shields, supra, when it has been considered under Art. 40.09, Sec. 13, V.A.C.C.P. Conaway v State, 549 S.W.2d 181 (Tex.Cr.App. 1977); Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977). The sufficiency of the evidence will be considered on appeal, but not in a habeas corpus proceeding.

  6. Mckelvey v. State

    570 S.W.2d 951 (Tex. Crim. App. 1978)   Cited 4 times

    In Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App. 1975), this Court held that a docket sheet entry "waived time" was insufficient to show that sentence had not been prematurely pronounced. The decisions of this Court clearly establish that where sentence is pronounced prematurely or in untimely manner the jurisdiction of this Court is not invoked and the appeal must be dismissed. Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977); Carpenter v. State, 541 S.W.2d 446 (Tex.Cr.App. 1976); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App. 1976), and cases therein cited. It should be noted, however, that in Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App. 1977), we held that such a sentence is merely voidable rather than void. It is clear, therefore, that the sentence pronounced on December 17, 1976, was premature. The appellant next contends that the trial court erred when it resentenced him on October 20, 1977, over his objection.

  7. Washington v. State

    559 S.W.2d 825 (Tex. Crim. App. 1978)   Cited 5 times

    " In light of this testimony and the fact that a written waiver of the right of appeal nowhere appears in the records of any of appellant's three convictions, we cannot conclude that appellant ever agreed, as a part of the plea bargain, to forego his right to appeal. Cf. Mears v. State, 557 S.W.2d 309 (Delivered November 2, 1977); Means v. State, 552 S.W.2d 166 (Tex.Cr.App. 1977); Ex parte Thomas, 545 S.W.2d 469 (Tex.Cr.App. 1977); Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App. 1976); Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App. 1976); Fisher v. State, 511 S.W.2d 506 (Tex.Cr.App. 1974). Since this is not shown to be a part of the plea bargain, appellant did not breach his part of the plea bargain when he filed notice of appeal. Therefore, the State was bound by its agreement to terminate the capital murder trial.

  8. Jordan v. State

    552 S.W.2d 478 (Tex. Crim. App. 1977)   Cited 20 times
    In Jordan v. State, 552 S.W.2d 478 (Tex.Cr.App. 1977), appellant was convicted in two counts in one indictment for burglary of a building with intent to commit theft and theft.

    The exercise of this Court's appellate jurisdiction is not a matter of discretion. Just as we may not decline to hear an appeal when jurisdiction is properly invoked, we likewise may not hear an appeal when jurisdiction is lacking. See my concurring opinion in Means v. State, Tex.Cr.App., 552 S.W.2d 166 (1977). Contrast our discretionary jurisdiction in original habeas corpus matters, as discussed in Ex parte Norvell, Tex.Cr.App., 528 S.W.2d 129, 130.

  9. Bushnell v. State

    975 S.W.2d 641 (Tex. App. 1998)   Cited 27 times
    Dismissing for lack of appellate jurisdiction based upon waiver of the right to appeal made in exchange for State's agreement as to punishment, as expressed in colloquy in open court

    However, if the rule in Thomas is still viable, we find it has no application under the facts presented here. See also Means v. State, 552 S.W.2d 166, 167 n. 1 (Tex.Crim.App. 1977); Moss v. State, 938 S.W.2d 186, 190 (Tex.App.-Austin 1997, pet. ref'd); Doyle v. State, 888 S.W.2d 514, 518 (Tex.App.-El Paso 1994, pet. ref'd). A waiver of appeal filed before trial has also been found ineffective.

  10. Wilkerson v. State

    670 S.W.2d 280 (Tex. App. 1984)   Cited 3 times

    We are compelled to dismiss this appeal under art. 44.08(b). The State has not complained of lack of jurisdiction, but subject matter jurisdiction cannot be conferred or result from agreement, consent, waiver, or request of the parties. Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Cr.App. 1964); Means v. State, 552 S.W.2d 166, 168 (Tex.Cr.App. 1977). We further note that art. 44.08(e) of the Code of Criminal Procedure authorizes the court of appeals, for good cause shown, to permit the giving of notice of appeal after the expiration of such fifteen day period.