On August 28th the appellant, Jose Maria Yglecias, was found guilty by the verdict of a jury rendered during the term of court which adjourned on the 31st day of August, 1929. On the morning of the 31st day of August the appellant and his attorney appeared in court. Announcement was made that the appellant would file no motion for new trial but would accept the sentence. Responding to the court's inquiry the appellant said there was no reason why the sentence should not be passed upon him in accord with the verdict of the jury. On September 1st, the district judge received from the attorney for the appellant a letter enclosing a motion for new trial, an order overruling the motion and notice of appeal. The judge declined to entertain the motion and to enter the notice of appeal. Upon the facts mentioned above the appellant, in his motion for rehearing, insists that this court is in error in holding that it is without jurisdiction of the appeal, pointing to Arts. 755 and 829, C. C. P., which articles we quote:
"A new trial must be applied for within two days after the conviction; but in felony cases for good cause shown, the court may allow the motion to be made at any time before the adjournment of the term at which the conviction was had. When the court adjourns before the expiration of two days after the conviction, the motion shall be made before the adjournment."
"Where the defendant in a felony case fails to appeal until after sentence has been pronounced, the appeal shall, nevertheless, be allowed, if demanded, and has the effect of superseding the execution of the sentence and all other proceedings as fully as if taken at the proper time."
We also quote from Art. 11, C. C. P., as follows:
"The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case." *Page 513
Art. 827, C. C. P., in part reads thus:
"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."
That this court is without jurisdiction to review an appeal from a conviction in the absence of notice of appeal has often been declared. See Jones v. State, 89 Tex.Crim. R.; Montgomery v. State, 81 Tex.Crim. R.; Cato v. State,85 Tex. Crim. 659, and many others collated in Vernon's Ann. Tex. C. C. P., 1925, Vol. 3, p. 198. The time for the disposition of a motion for new trial is during the term at which the verdict was rendered. Williams v. State, 99 Tex.Crim. R.; Barr v. State, 62 Tex.Crim. R.. In the present appeal nothing appears which would warrant any extraordinary action such as mandamus to compel the entry of the notice of appeal. The appellant had a right to change his mind after his sentence, but to perfect his appeal it was essential that he give notice of appeal during the term at which he was tried. The statute permits its entry thereafter but only upon the condition that the notice be given at the proper time.
The motion is overruled.
Overruled.