Offield v. State

• Decision Date: 01 March 1911
• Citation: 135 S.W. 566
• Parties: OFFIELD v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W. 566

OFFIELD v.STATE.

Court of Criminal Appeals of Texas.

March 1, 1911.

On Motion for Rehearing, March 22, 1911.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

H. L. Offield, alias Roy James, was convicted of burglary, and appeals.Appeal dismissed.

Lattimore, Cummings, Doyle & Bouldin, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant in this case was indicted at the June term of the district court of Tarrant county, charged with burglary.He was convicted, and sentenced to two years' confinement in the penitentiary.

It appears from the record that the term of court at which appellant was tried began on June 6, 1910, and adjourned September 3, 1910, and at this term of court no notice of appeal was given or entered of record.The only notice of appeal in the record appears to have been given and entered of record on October 1, 1910, about four weeks after the adjournment of the term at which appellant was tried.Our Code of Criminal Procedure provides:

"Art. 872.A defendant in any criminal action, upon conviction, has the right to appeal under the rules herein prescribed."

"Art. 882.An appeal may be taken by the defendant at any time during the term of the court at which the conviction was had.

"Art. 883.An appeal is taken by giving notice thereof in open court and having the same entered of record."

In Clark v. State, 3 Tex. App. 338, it is held: "An appeal taken without notice given at the term at which the conviction was had will confer no jurisdiction upon the appellate court."Even in death penalty cases, in Roan v. State, 65 S. W. 1068, in order to clothe this court with jurisdiction, the appeal must be taken at the term at which the defendant was tried and convicted.Having failed to give notice of appeal during the term, appellant forfeited his right to appeal.Morse v. State, 39 Tex. Cr. R. 566, 47 S. W. 645, 50 S. W. 342;Wilcox v. State, 31 Tex. 586, and other cases cited.

No notice of appeal having been given and entered of record at the term of court at which the defendant was tried, the appeal is dismissed.

On Motion for Rehearing.

At a former day of this term this appeal was dismissed, because the record did not disclose that notice of appeal was given and entered of record at the term of court at which defendant was tried.Appellant has filed a motion for a rehearing in this cause, in which he alleges that on the day sentence was passed he did give notice of appeal to this court, and attaches thereto the certificate of the judge before whom the case was tried, and the clerk of the court, that in fact he did, at the term at which he was tried, in open court give notice of appeal.It also appears from the papers now on file that since the entry of the judgment dismissing this cause the following proceedings have been had in the court originally trying this cause:

"And now, in the above entitled and numbered cause, comes the defendant, H. L. Offield, alias Roy James, and respectfully shows to the court that this cause is pending on appeal before the Court of Criminal Appeals, and that heretofore, on June 16, 1910, this defendant was convicted, and on July 11, A. D. 1910, defendant filed in this cause his motion for a new trial, which was by this court stricken out because not filed within two days, on September 3, A. D. 1910, and that on said date the defendant then and there in open court excepted and gave notice of appeal to the Court of Criminal Appeals of the state of Texas, which said notice of appeal was by this court entered of record upon the motion docket; but the clerk of this court, in writing up the minutes of said court, failed to enter same in the minutes of this court, as will more fully appear of record in the motion docket of this court, to which reference is here made, where said notice of appeal was entered during the June term of said court, on, to wit, September 3, A. D. 1910, which was the last day of said term.He therefore prays that, as said notice of appeal was in fact given by defendant during the term of this court at which said cause was tried, and the same was by this court entered upon the docket of said court, but the failure to enter same in the minutes of this court was not through any fault or negligence of appellant or his counsel, that this court here order E. J. Brock, Jr., clerk of this court, to enter said order in the minutes of this court, together with the notice of appeal as then given nunc pro tunc.

"State of Texas v. H. L. Offield, alias Roy James.Order on Motion to Enter Judgment Nunc Pro Tunc.March 9, 1911.Be it remembered that on this day came on to be heard the motion of the defendant in the above styled and numbered cause to enter herein order on motion to strike out and dismiss motion for new trial that was heard September 3, 1910, and the court having heard said motion, and it appearing to the court that a ruling was had as stated in said motion, but that said motion was never entered of record, and it is therefore ordered, adjudged, and decreed by the court that the order be now here entered as of September 3, 1910, as follows, to wit:

"The State of Texas v. H. L. Offield, alias Roy James.Nos....