Beaver v. State , 1966 Tex. Crim. App. LEXIS 968 ( 1966 )

WOODLEY, Judge.

The offense is the unlawful sale of beer in a dry area; the punishment, a fine of $450.

The state moves that the appeal be dismissed for want of jurisdiction because notice of appeal was not given during the June 1965 term of court at which the conviction became final, as required by Art. 827 Vernon’s Ann.C.C.P.

Trial was had and judgment rendered on June 24, 1965. Motion for new trial was filed the same day.

On July 2, 1965, appellant’s first amended motion for new trial was filed. No further action having been taken, appellant’s first amended motion for new trial was overruled by operation of law 20 days after the amended motion was filed. Art. 755 V.A.C.C.P.

The June term of court expired on July 30, 1965, without any notice of appeal having been given.

The only notice of appeal shown by the record is that given on August 2, 1965, on which day an order was entered reciting that the defendant’s motion for new trial was overruled.

The contention that this court is without jurisdiction to entertain the appeal is supported by Morgan v. State, 378 S.W.2d 321, and Alter v. State, 171 Tex.Cr.R. 14, 344 S.W.2d 455, cited by the state.

Appellant cites Atkinson v. State, 154 Tex.Cr.R. 421, 299 S.W.2d 951. The Atkinson case is distinguished by the fact that there the amended motion for new trial overruled by the court was filed with leave of the court on the day it was overruled, whereas in the cases above cited, and in the case before us, the motion for new trial which the court attempted to overrule was filed more than 20 days prior to the adjournment of the previous term of court.

Appellant further contends that this appeal must be decided under the Code of Criminal Procedure which became effective on January 1, 1966, rather than the Code as it existed at the time the judgment was rendered and the time that he sought to invoke the jurisdiction of the Court of Criminal Appeals by giving notice of appeal on August 2, 1965, after the June term of court had adjourned. We do not agree.

As to such a judgment, the statute which became effective thereafter did not confer jurisdiction upon the Court of Criminal Appeals which it did not. have at the time the judgment was rendered and became final in the trial court.

The state’s motion is granted and the appeal is dismissed.