Bell v. State , 111 Tex. Crim. 456 ( 1929 )

The offense is aggravated assault; the punishment a fine of twenty-five dollars and confinement in jail for thirty days.

The state's attorney moves to dismiss the appeal. The motion must be granted. We note that the trial court ordered that appellant be brought into open court for the purpose of giving notice of appeal. The record fails to disclose that such notice was given and entered of record. Among other things, Article 827 Cow. C. P. provides:

"If notice of appeal is given at the term at which the conviction is had and the same is not entered of record, then by making proof of the fact, the judge of the court trying the cause shall order the same entered of record either in term time or vacation by entering in the minutes of his court an order to that effect. Said entry when so made shall bear date as of date when notice of appeal was actually given in open court."

If appellant in fact gave notice of appeal and same was not entered of record, he may avail himself of the provisions of the article above quoted in order that the trial court may direct that notice of appeal be entered of record. In the absence of such notice this court is without jurisdiction. Hughes v. State, 9 S.W.2d 1109.

We note that it is recited in appellant's brief that appellant entered into recognizance on appeal. The recognizance is not brought forward in the record.

The appeal is dismissed. Appellant is granted fifteen days in which to perfect the record in the particulars mentioned.

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.

ON REHEARING.