Beard v. State

CONCURRING OPINION

WOODLEY, Judge.

*505The case of Johnson v. State, 163 Texas Cr. Rep. 101, 289 S.W. 2d 249, recently decided, controls the question of appellant’s absence at the time his motion for new trial was heard and determined. There, as here, the conviction was for a misdemeanor and the question was not raised in the trial court by bill of exception, but was shown in the order overruling the motion for new trial.

Phillips v. State, 163 Texas Cr. Rep. 13, 288 S.W. 2d 775, cited by appellant, on the other hand, was a felony conviction. Phillips who was necessarily in custody pending the…