# Cherry v. State

> Court of Criminal Appeals of Texas · June 28, 1972 · 488 S.W.2d 744

URL: https://www.frixlaw.com/law-library/cases/9763840

## Case

- **Full name:** James Walter CHERRY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 28, 1972
- **Citations:** 488 S.W.2d 744; 1972 Tex. Crim. App. LEXIS 2323
- **Precedential status:** Published
- **Opinion:** On rehearing by Davis
- **Judges:** Dally, Davis, Onion
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763840

## Opinion text

■ ON APPELLANT’S MOTION FOR REHEARING
DAVIS, Commissioner.
In light of the recent decisions of the United States Supreme Court regarding the death penalty, appellant urges that his conviction be reversed and the cause remanded to the trial court.
The Supreme Court of the United States overruled the prior holding of this and other courts in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 , and in Branch v. Texas, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 , when it held in effect that the death penalty may not be assessed under our present statute.
The Honorable Preston Smith, Governor of Texas, acting upon the recommendation of the Board of Pardons and Paroles by Proclamation dated September 13, 1972, has commuted the punishment in this cause from death to life imprisonment.
Whan v. State, Tex.Cr.App., 485 S.W.2d 275 (No. 41,789, 1972), is contrary to appellant’s contention that this Court cannot reform the judgment under such commutation so that punishment is assessed at life imprisonment. See Antwine v. State, 486 S.W.2d 578 (1972); Hall v. State, 488 S.W.2d 94 (1972).
In appellant’s pro se brief filed on motion for rehearing, he urges that he had not received notice nor had he signed any waiver or consent which would permit any official to take any procedure toward an “unrequested and unwanted commutation.”
Notification to appellant or his attorney is not necessary to effectuate either the Governor’s or the Board of Pardons and Paroles’ powers regarding commutation of sentence. (Stanley v. State; Thames v. State; Curry v. State; David v. State; Wright v. State; Smith v. State; Tea v. State; Branch v. State; Matthews v. State; Morales v. State; Huffman v. State), 490 S.W.2d 828 .
Appellant further urges in his pro se brief that since sentence had not been pronounced in his case, the Governor had nothing to commute. This contention was decided adversely to appellant in Whan v. State, supra; Antwine v. State, supra, and Hall v. State, supra.
We have considered other contentions raised by appellant in his pro se brief and find them to be without merit.
As a result of the Governor’s commutation and authority of Whan v. State, supra, the judgment of the trial court is ordered reformed to show the punishment to be assessed at life.
The judgment as reformed is affirmed and appellant’s motion for rehearing is overruled.
Opinion approved by the Court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763840. Public record. Not legal advice.