ON MOTION FOR REHEARING.
DAVIDSON, Judge.In challenging the correctness of our conclusion that no right of appeal existed in this case, appellant makes clear his position, which he states in his motion for rehearing, as follows:
“The appellant in this cause contends and maintains that the right of appeal exists by virtue of the constitution and inde.pendent of the Legislature.” Such contention is made, notwithstanding the express limitation contained in Section 5, Article 5, of the State Constitution, as follows:
. “— — — — — — with such exceptions and under such regulations as may be prescribed by law”; and the repeated holdings of this court contrary to appellant’s views. See: Ex parte Bennett, 211 S. W. 934, 85 Tex. Cr. R. 315; De Silva *201v. State, 267 S. W. 271, 98 Tex. Cr. R. 499; Wright v. State, 163 S. W. 976, 73 Tex. Cr. R. 178; Powell v. State, 269 S. W. 443; 99 Tex. Cr. R. 276; Ex parte Minor, 27 S. W. (2d) 805, 115 Tex. Cr. R. 634; Ex parte McKenzie, 29 S. W. (2d) 771, 115 Tex. Cr. R. 315.
We have no doubt as to the correctness of our conclusion that, in this State, the right of appeal is conferred only by the Constitution, with such exceptions or limitations as the legislature directs by statute.
In our original opinion, we held that the 1941 amendment of Arts. 777 and 779, C. C. P., being Chapter 602, Acts Regular Session 47th Legislature, was not, on its face, an ex post facto law.
We now discuss the question from the standpoint as to whether or not the amendment was ex post facto as applied to the facts of the instant case. In doing so, it is deemed pertinent to set out the happenings and events as they transpired, in chronological order, as follows:
On September 4th, 1939, appellant was indicted for the felony offense of burglary with intent to commit the crime of theft. On October 12th, 1939, he was convicted of said offense, with punishment assessed at five years in the penitentiary. Sentence therefor was suspended for the term assessed. On October 24th, 1940, appellant was indicted for the then felony offense of driving an automobile upon a public highway while intoxicated. On February 19th, 1941, he was convicted of that offense, and his punishment was assessed at a fine of $50.00 and thirty days in jail. From this conviction he appealed to this court. Such appeal was determined by an affirmance of the conviction, on the 9th day of January, 1942. As a result of the "final conviction of such felony, during the period of the suspension of sentence under the burglary charge, appellant was brought before the district court, on March 4th, 1942, when the suspended sentence was revoked and sentence finally passed, under the burglary conviction. It is from this sentence that appellant has attempted to appeal in this cause.
Prior to March 4th, 1942, appellant was not in position to appeal from the burglary conviction, because no right of appeal from a conviction is authorized while sentence thereon is sus*202pended. Thomas v. State, 219 S. W. 1100, 87 Tex. Cr. R. 153; Gallier v. State, 182 S. W. 306, 78 Tex. Cr. R. 534; Lamkin v. State, 136 S. W. (2d) 225, 138 Tex. Cr. R. 311.
In a felony ease, it is only when sentence has been. finally passed that the right of appeal exists, as a valid sentence is a prerequisite to confer jurisdiction upon this court. Skinner v. State, 274 S. W. 133, 101 Tex. Cr. R. 68; Wilkes v. State, 273 S. W. 258, 100 Tex. Cr. R. 369; De Laney v. State, 98 Tex. Cr. R. 68, 263 S. W. 1065.
The amendment heretofore mentioned, which expressly precluded an appeal when sentence was passed after revoking a suspended sentence, took effect in October, 1941, which was long prior to March 4th, 1942, and, therefore, was not ex post facto as applied to the facts of this cause, because it did not alter or change any right that the appellant had prior to its adoption. Appellant had no right of appeal in the burglary case, prior to March 4th, 1942, and, by the amendment, had none thereafter.
We remain convinced of the correctness of our conclusion that no right of appeal exists in this case.
The motion for rehearing 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.