Smith v. State

The offense is burglary; the punishment, twelve years in the state penitentiary.

The former opinion of this court, affirming the judgment of the trial court, is withdrawn and the appeal is dismissed, because no notice of appeal appears to have been given as required by law. Art. 827, C. C. P., provides:

"An appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record. _____________________________________ _____________________________________________________________ _____________________________________________________________ _________________________________."

The sole and only showing in this record by which it might be contended that notice of appeal was given is the following:

"Now comes the defendant in the above styled and numbered cause and excepts to the verdict of the jury, the judgment of the court, and to the order overruling his motion for new trial, and gives notice of appeal to the Court of Criminal Appeals of the State of Texas, at Austin, Texas."

Same is signed by appellant's counsel. That such a notice is insufficient is apparent. It does not show when the notice was given, or that it was made in open court. A notice of appeal given merely by the attorney for the accused is insufficient. Hill v. State, 300 S.W. 70, 108 Tex.Crim. R.. A notice of appeal in accordance with the statute mentioned is a necessary prerequisite to confer jurisdiction of an appeal upon this court. Bertrand v. State, 136 S.W.2d 849, 138 Tex. Crim. 393; Riley v. State, 125 S.W.2d 306, 136 Tex.Crim. R..

The appeal 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.

ON MOTION FOR REHEARING.