Tucker v. State

416 S.W.2d 437 (1967)

Harmon Cecil TUCKER, Appellant,
v.
The STATE of Texas, Appellee.

No. 40115.

Court of Criminal Appeals of Texas.

June 21, 1967.

Tom Ryan, McKinney, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is felony theft, habitual; the punishment, life in the penitentiary.

Trial was on January 5, 1966, and notice of appeal was entered February 24, 1966.

The record before us includes a motion by appellant filed in the trial court requesting that he be allowed to withdraw his notice of appeal and an order by the trial court granting such motion.

The appellate record had not been approved and the time for filing briefs had not expired at the time appellant's request was granted; therefore, the trial court retained jurisdiction of the cause and had authority to grant the motion and dismiss the appeal. Arts. 40.09 and 44.11, Vernon's Ann.C.C.P. and Rangel v. State, Tex.Cr. App., 408 S.W.2d 231.

The appeal is dismissed as of June 2, 1967, the date of the trial court's order.