The opinion
ONION, Presiding Judge
(concurring).
While I concur in the action of the majority in overruling the State’s motion for rehearing without written opinion, I have concluded that in order to clarify some confusion which exists among the bench and bar as to when a sentence should be pronounced in a death penalty case appellant’s first ground of error on original submission should be discussed.
In his first ground of error appellant contends the appeal should be abated because the trial court improperly pronounced sentence prior to the decision of this court *297 in violation of Article 42.04, Vernon’s Ann. C.C.P., which provides in part:
“When an appeal is taken from a death penalty, sentence shall not be pronounced, but shall be suspended until the decision of the Court of Criminal Appeals has been received. . . .”
Article 42.02, Vernon’s Ann.C.C.P., provides:
“A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”
Article 43.14, Vernon’s Ann.C.C.P., provides that when a sentence of death is pronounced the sentence shall be executed “at any time before the hour of sunrise on the day set for the execution not less than thirty days from the day of sentence, as the court may adjudge . . . .”
Article 43.15, Vernon’s Ann.C.C.P., describes the duties of the clerk of the trial court in issuing a warrant for the execution of the sentence of death within ten days of such sentence, which shall recite, among other things, “the time fixed for his execution,” set by the trial court.
In view of the time limits set forth in these latter statutes, it is understandable why sentence is delayed in death cases until the receipt of the mandate of the Court of Criminal Appeals as required by Article 42.-04, supra. See and compare time limits for preparation of an appellate record, Article 40.09, Vernon’s Ann.C.C.P.
Article 37.071(e) provides that if the jury returns an affirmative finding on each issue submitted under the statute “the court shall sentence the defendant to death. . . . ”
and Section (f), which provides in part that the “judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals
A study of Article 37.071, supra, reveals that the drafting of such statute started with out-of-state statutes where the words “sentence” or “sentencing” were not used in the same sense as a formal sentence defined in Article 42.02, supra, but were used as equivalent to punishment.
I therefore would hold that the provisions of Article 37.071, supra, referring to “sentence to death,” etc., refers to the assessment of punishment and not to a formal sentence, and the provisions of Article 42.-04, supra, still control. The trial judge was apparently misled by the awkward wording of Article 37.071, supra, but it is observed that no execution date was set as normally required in death sentences, apparently because the court realized that it could not be carried out within the necessary time limits while the case was on appeal, and that another sentence setting the execution date would be required.
There is no reason to abate the appeal because the court pronounced sentence. It will be regarded as surplusage. Appellant’s contention is without merit.