Full opinion text
OPINION ON APPELLANT’S MOTION FOR REHEARING DAVIS, Commissioner. Our Opinion on original submission is withdrawn and the following is substituted therefor. Appeal is taken from a conviction for the misdemeanor offense of driving a motor vehicle while intoxicated upon a public highway. Punishment was assessed by the jury at ninety days in jail and a fine of $75.00. The sentence contained in the record affirmatively shows that it was pronounced in absentia, the appellant not being present. A sentence in a misdemeanor case, where the maximum possible punishment could have been confinement in jail, must be pronounced in the presence of the defendant under Article 42.02, Vernon’s Ann.C.C.P.; Millman v. State, Tex.Cr. App., 487 S.W.2d 750. Since the appellant was not present at the time of sentencing in the instant case, where the conviction was for a violation of Article 802, Vernon’s Ann.P.C., the cause is remanded for proper sentencing. It is so ordered. Opinion approved by the Court. . In misdemeanor cases, where the maximum possible punshment is by fine only, Article 42.14, Y.A.C.C.P., authorizes sen-fencing in the absence of defendant. Mill-man v. State, supra.