McConathy v. State, 544 S.W.2d 666 (Tex. Crim. App. 1976). · Go Syfert
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McConathy v. State, 544 S.W.2d 666 (Tex. Crim. App. 1976). Cases Citing This Book View Copy Cite
41 citation events (25 in the last 25 years) across 4 distinct courts.
Strongest positive: Todd Mitchell v. State (texapp, 2015-08-31)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 10 distinct citers.
discussed Cited as authority (rule) Todd Mitchell v. State
Tex. App. · 2015 · confidence medium
Tlie Court in Lundgren cited the following cases for this proposition: Milburn v. State, 201 S.W.3d 749, 750 (Tex.Crim.App.2006) (whether previous felony conviction was final such that the appellant was not entitled to an instruction on community supervision for a subsequent offense); Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App.1986) (whether a previous conviction is final such that it can be used to enhance a subsequent offense); Delorme v. State, 488 S.W.2d 808, 810 (Tex.Crim.App.1973) (holding that, when an appeal is taken, the terms of community supervision do not commence until the …
discussed Cited as authority (rule) Armando Simon v. State
Tex. App. · 2014 · confidence medium
Thus, if a defendant files a timely and effective notice of appeal, that filing stays the commencement of the community-supervision term imposed until appellate mandate has issued affirming the judgment of conviction. 2 Lundgren, 434 S.W.3d at 598 ; Delorme, 488 S.W.2d at 810 ; McConathy v. State, 544 S.W.2d 666, 668 (Tex.Crim.App.1976) (applying the same nonfinality rule to motions for new trial).
examined Cited as authority (rule) Lundgren, Jerry Paul (10×) also: Cited "see"
Tex. Crim. App. · 2014 · confidence medium
App. 1986) (whether a previous conviction is final such that it can be used to enhance a subsequent offense); Delorme, 488 S.W.2d at 810 (holding that, when an appeal is taken, the terms of community supervision do not commence until the appellate mandate has issued and the judgment is final); McConathy, 544 S.W.2d at 668 (holding that, if no notice of appeal is filed, Lundgren–8 the context of convictions on appeal, we have repeatedly held that a judgment of conviction is not final while the conviction is on appeal.
examined Cited as authority (rule) Lundgren, Jerry Paul (5×) also: Cited "see"
Tex. Crim. App. · 2014 · confidence medium
Following this same rule, if a defendant files a timely and effective notice of appeal, that filing stays the commencement of the community-supervision term imposed until appellate mandate has issued affirming the judgment of conviction. (5) See Delorme , 488 S.W.2d at 810 ; McConathy , 544 S.W.2d at 668 (applying the same nonfinality rule to motions for new trial).
discussed Cited as authority (rule) Shanks v. Treadway
Tex. · 2003 · confidence medium
In Cearley, when we recognized contingent pension benefits as community property rights subject to division upon divorce, we acknowledged that "it may be necessary in many instances for the judgment to make the apportionment to the nonretiring spouse effective if, as, and when the benefits are received by the [employee] spouse.” 544 S.W.2d at 666.
cited Cited as authority (rule) Randall Parks v. State
Tex. App. · 1996 · confidence medium
App. 1977); McConathy v. State , 544 S.W.2d 666, 668 (Tex. Crim.
cited Cited as authority (rule) State v. Batson
Mo. Ct. App. · 1989 · confidence medium
McConathy v. State, 544 S.W.2d 666, 668 (Tex.Crim.App.1976).
cited Cited "see" Lundgren v. State
Tex. App. · 2013 · signal: see · confidence high
See McConathy v. State, 544 S.W.2d 666, 668 (Tex.Crim.App.1976) (“[T]he terms of probation commenced on the day the amended motion for new trial was overruled by operation of law.”); 43B George E.
cited Cited "see" Jerry Paul Lundgren v. State
Tex. App. · 2013 · signal: see · confidence high
See McConathy v. State, 544 S.W.2d 666, 668 (Tex.Crim.App.1976) (“[T]he terms of probation commenced on the day the amended motion for new trial was overruled by operation of law.”); 43B George E.
discussed Cited "see" Rodriguez v. State (2×)
Tex. App. · 1984 · signal: see · confidence high
See McConathy v. State, 544 S.W.2d at 668 .
Richard McCONATHY, Appellant,
v.
the STATE of Texas, Appellee
52984.
Court of Criminal Appeals of Texas.
Dec 15, 1976.
544 S.W.2d 666
Kerry P. Fitzgerald, Dallas, for appellant. Henry Wade, Dist. Atty., and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
Onion.
Cited by 20 opinions  |  Published

OPINION

ONION, Presiding Judge.

This is an appeal from a final judgment forfeiting a bail bond in the amount of $200.00.

Cecil Frank Kovar was charged by complaint and information with the offense of theft of more than $5.00 but less than $20.00 and was arrested on October 3, 1975. On the same date he was released on a $200.00 bail bond with the appellant McCo-nathy as surety. On February 10, 1976 Kovar signed a printed form which waived trial by jury and “any delay in sentencing.” On that date he entered a guilty plea to the theft charge and his punishment was assessed at thirty (30) days in the county jail and a fine of $150.00. However, the court placed him on probation for six (6) months under the terms of Article 42.13, Vernon’s Ann.C.C.P. On the same date Kovar filed a motion for new trial. On March 1, 1976 Kovar filed an amended motion for new trial. On March 23, 1976 a hearing was called on the amended motion for new trial. Kovar failed to appear and the court entered a judgment nisi. On May 28, 1976, after a hearing, the judgment nisi was made final.

At the outset appellant contends his liability as surety was discharged and terminated on February 10, 1976, when the principal Kovar was “finally convicted and sentenced” and that any subsequent proceedings were unauthorized and void as a matter of law. There is nothing in the record to reflect or even suggest that Kovar was sentenced on February 10, 1976. In fact, the contrary appears. Kovar was granted misdemeanor probation on that date. Article 42.13, § 4, Vernon’s Ann.C. C.P., provides that in such cases the finding of guilt does not become final and the court does not even render judgment. While the court is required to record the grant of probation and the details of the judgment, there is no final conviction. Without a judgment there can be no sentence. Article 42.02, Vernon’s Ann.C.C.P. We reject appellant’s contention.

In the alternative, the appellant argues that his liability as a surety on the bond was discharged on March 22, 1976, the date that Kovar’s amended motion for new trial was overruled by operation of law, and thereafter no subsequent proceedings were[*668] authorized by law absent the giving of the notice of appeal by the principal on the bond, which in the instant case was not done.

The amended motion for new trial was overruled by operation of law twenty days after it was filed on March 1, 1976. See Article 40.05, Vernon’s Ann.C.C.P.; St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). And the rule is applicable in misdemeanor probation cases for the reasons set forth in McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976). Therefore on March 23, 1976, when the court called a hearing on the amended motion for new trial, it had already been overruled by operation of law. What then was Kovar’s status on March 23 so as to affect the appellant’s liability as surety on the bail bond?

In Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975), this court concluded that terms of probation commenced at the time an order dismissing the appeal was entered. Analogy was made to Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973), where it was held that the terms of probation do not commence until the mandate of this court is issued when an appeal has been taken.

In the instant case where no notice of appeal was given by the principal-defendant, we conclude the terms of probation commenced on the day the amended motion for new trial was overruled by operation of law. The court was not authorized to hold a hearing the next day on the already overruled amended motion for new trial as Article 40.05, Vernon’s Ann.C.C.P., does not authorize the court to extend the time in which such motions may be determined, and Kovar’s probation had already commenced. Thus, we do not construe the unauthorized hearing to be a subsequent proceeding had relative to the offense charged as contemplated by Article 17.09, Vernon’s Ann.C.C.P. We hold that under the circumstances of the instant case the appellant-surety’s liability to insure the principal’s appearance at a subsequent proceeding was discharged upon the date the motion for new trial was overruled by operation of law as his misdemeanor probation had commenced and there could be no subsequent proceedings had relative to the charge absent the giving of a notice of appeal.

The judgment is reversed and the cause remanded.