Ash v. State ( 1947 )

KRUEGER, Judge.

The offense is theft of personal property over the value of Fifty Dollars. The punishment assessed is confinement in the state penitentiary for a period of two years.

The indictment contains three counts, the first of which charges appellant and Carl Thomas Ash with theft of personal property over the value of Fifty Dollars from Elmo Caudle. The second count charges appellant and Carl Thomas Ash with the theft of personal property belonging to J. H. Kirby from Elmo Caudle who was holding the same for J. H. Kirby, etc. The third count charges appellant and Carl Thomas Ash with unlawfully and fraudulently receiving from James Herbert Webb the said property and fraudulently concealing the same, etc.

A severance was requested by appellant and by agreement between the defendants, the appellant was placed on trial. The court submitted the case to the jury on the first count only. The jury convicted him of theft and assessed his punishment as above indicated from which judgment of conviction appellant attempted to appeal. The only notice of appeal as reflected by the record is a notice on the Judge’s docket. Art. 827, C. C. P. requires that such notice be given in open court and entered of record. This is necessary to confer appellate jurisdiction upon this Court.

It has been held many times that an entry of notice of appeal on the Judge’s docket is not in compliance with the article above mentioned. It must be entered of record upon the minutes of the court. In the absence of which, this Court does not acquire jurisdiction. See Long v. State, 3 Tex. App. 321, Tarkenton v. State, 138 Tex. Cr. R. 292 (135 S. W. (2d) 716), Lucas v. State, 138 Tex. Cr. R. 277 (135 S. W. (2d) 720), Bertrand v. State, 138 Tex. Cr. R. 393 (136 S. W. (2d) 849), Bailey v. State, 141 Tex. Cr. 303 (148 S. W. (2d) 851), Keys v. State, 141 Tex. Cr. R. 597 (150 S. W. (2d) 1021), Hollis v. State, 142 Tex. Cr. R. 36 (151 S. W. (2d) 597).

Since the notice of appeal was not entered on the minutes of the court, the attempted appeal in this case is dismissed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.