Bristow v. State

After the dismissal of the appeal the clerk of the trial court prepared and transmitted to this Court a supplemental transcript showing that notice of appeal had been embraced in the sentence and entered in the minutes of the court. In connection with such transcript, appellant's attorney filed an unverified motion to reinstate the appeal, in which it is stated that the clerk inadvertently failed to show in the original transcript that notice of appeal had been given and entered in the minutes; that such omission was called to the attention of the trial judge, who ordered the supplemental transcript in question showing sentence and notice of appeal forwarded to this court. The *Page 222 district attorney has filed an answer to appellant's motion, which is supported by the affidavit of the deputy district clerk who entered notice of appeal in the minutes of the court, and also in connection with said answer a second supplemental transcript has been filed bearing a caption which gives a detailed statement of the procedure followed in carrying the notice of appeal into the minutes of the court. We quote from the State's answer, which is supported as aforesaid:

"Appellant was tried in the 91st District Court during the June term of said court which ended on the 30th day of July, 1938: That appellant, during said term of court, was found guilty as charged in the indictment and the judgment of conviction on her plea of not guilty was duly recorded during said June term of said court in volume 3, page 316 of the minutes of said court. That on the same date of such conviction, and during the June term of said court sentence was duly passed on the appellant and such sentence recorded in volume 3, page 553 of the minutes of said court, same being entered during said term of court and approved by the court on the 30th day of July, 1938.

"The State shows to this Honorable Court that no notice of appeal was entered in the minutes of said court either as a part of the judgment or of the sentence or in any other manner during the June term, 1938, of said court, which was apparent from the original transcript filed in this appeal, and was and is apparent from the certificate contained in the caption of the second supplemental transcript filed herein, such certificate being made by the district clerk of the 91st District Court.

"No notice of appeal whatsoever was made and entered in the minutes of the 91st District Court until after this honorable court had dismissed the appeal herein on March 1, 1939. When such appeal was so dismissed appellant's attorney, M. E. Lawrence, instructed and directed Miss Sybil Holder, deputy district clerk, to insert and write into the minutes of the 91st District Court (in ink) a notice of appeal as the same appears now in the first supplemental transcript filed herein since March 1, 1939, as shown by the caption and certificate of the district clerk on the second supplemental transcript filed in this court at the instance of the district attorney of Eastland County, Texas."

Thus it appears that notice of appeal was entered in the minutes after the expiration of the term at which appellant was convicted without complying with the provisions of Art. 827, C. C. P., which we quote, as follows: "An appeal is taken *Page 223 by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record. 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."

The motion to reinstate the appeal is overruled.

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 APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION TO REINSTATE APPEAL.