on appellant’s motion for rehearing
WOODLEY, Judge.In proving the former conviction relied upon by the court in assessing the punishment under Art. 62, P.C., the state offered in evidence a certified copy of the sentence in Cause No. *5495983(A) in criminal district court of Dallas County, dated June 22, 1940, which concludes as follows: “ . . . and the said defendant is remanded to jail until said sheriff can obey the directions of this sentence gives notice of appeal.”
Appellant points out that there was no proof as to the disposition of an appeal in said cause, and urges for the first time the insufficiency of the evidence to show a final conviction in Cause No. 5983(A).
We held in Newsom v. State, 136 Texas Cr. Rep. 114, 123 S.W. 2d 887, that if the state’s evidence shows that the prior judgment relied upon was appealed from, the defendant is relieved of the burden ordinarily resting upon him to show that the prior conviction was not final. It was pointed out in the Newsom case that the records of this court failed to show that such appeal had reached us.
We have also held that a notice of appeal is sufficient which recites that appellant “gives this, his notice of appeal.” Braun v. State, 158 Texas Cr. Rep. 394, 257 S.W. 2d 708.
Also, in Brannan v. State, 76 Texas Cr. Rep. 492, 175 S.W. 697, and Newsom v. State, 142 Texas Cr. Rep. 47, 151 S.W. 2d 225, we have upheld the sufficiency of the entry of notice of appeal where shown in the sentence, as it appears in the minutes of the trial court.
Appellant relies upon these holdings and others where the question before us was an accused’s right to have a review on appeal of a conviction against him. In such a situation this court views the record in the light of the right of appeal being favored and the statutes are to be liberally construed and interpreted in order to avoid, if possible, a forfeiture of such right.
We note that there is nothing in the sentence offered by the state here to show that the defendant or his counsel gave notice of appeal in the prior trial, or that it was given in open court.
It is observed further that the historical fact of the conviction in Cause No. 5983(A) and its having become a final conviction long before the commission of the present offense is known to this court from its own records, because the conviction was affirmed in LeForis v. State, 141 Texas Cr. Rep. 316, 148 S.W. 2d 201.
*550We also know from the records of our court that the notice of appeal which was relied upon was not that here shown, but was a notice in full and regular form, given when the motion for new trial was overruled, and was entered as a part of that order. The sentence, as found in that record on appeal, contains no reference whatever to an appeal having been taken.
Another fact which may bear on the question here is that it was admitted and stipulated that appellant was the same person who was sentenced in the former trial and the sentence was referred to in his testimony as a conviction. Until motion for rehearing in this court it was not suggested that the conviction was not final because of an appeal. The only reservation in the admission was that it would not be stipulated that such conviction was a valid conviction.
From the records of this court we know that the conviction was affirmed long prior to the present offense and was therefore valid.
Lastly, it should be remembered that the prior conviction was not a part of the offense charged, and that the sole burden oh the state, in order to have the punishment fixed under Art. 62, P.C., was to establish as an historical fact such prior conviction.
Under the facts here we would not be warranted in applying the rule stated in Newsom v. State, 136 Texas Cr. Rep. 114, 123 S.W. 2d 887, and in reversing the conviction for failure of the state to show the affirmance of the judgment of conviction in the prior case. As stated, our records in that case did not show that Newsom’s appeal had ever reached this court, whereas in the instant case they show the affirmance of the judgment and the issuance of the mandate.
Appellant’s motion for rehearing is overruled. ,