Opinion
No. 41687.
October 23, 1968.
Appeal from the 29th Judicial District Court, Palo Pinto County, W. J. Oxford, J.
No attorney of record on appeal.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
This is an appeal from an order revoking probation.
We find that we are faced with the same question with which we were confronted in Anderson v. State, Tex.Cr.App., 421 S.W.2d 667, and this appeal must be dismissed for want of a sentence imposed after revocation of probation. See Article 42.04, Vernon's Ann.C.C.P.
The record reflects that on November 3, 1967, appellant was convicted of burglary upon his plea of guilty and punishment was assessed at three years. Judgment was entered accordingly. On that same date sentence was imposed, but the execution of the same was suspended and the appellant placed on probation subject to certain terms and conditions.
Following a hearing on the State's motion for revocation, appellant's probation was revoked on January 5, 1968, and the sentence previously imposed was ordered carried out.
Under former Article 781d, Sections 1 and 3, V.A.C.C.P., the trial court in granting adult probation was authorized to suspend either the imposition or the execution of the sentence. Cf. Article IV, Section 11A, Texas Constitution, Vernon's Ann.St.
Under the 1965 Code of Criminal Procedure the trial court, however, is limited to the use of the suspension of the imposition of the sentence method of granting probation. See Article 42.12, Sections 1 and 3, V.A.C.C.P., 1965. Under such procedure sentence is never imposed except following revocation of probation. A sentence imposed earlier where it is the clear intent of the court to grant probation is a nullity. Anderson v. State, supra; Cf. Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409.
The sentence in the case at bar being unauthorized at the time it was imposed, the court's order following revocation that the previously imposed sentence be carried out is of no effect.
No sentence appearing in the record following revocation of probation, the appeal is premature and is dismissed.