Barton v. State

310 S.W.2d 90 (1958)

Tommy BARTON, Appellant, v. The STATE of Texas, Appellee.

No. 29581.

Court of Criminal Appeals of Texas.

February 19, 1958.

*91 No attorney on appeal for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The appeal is from a conviction for unlawfully and knowingly receiving and concealing stolen property under the value of fifty dollars upon a plea of guilty before the court, with punishment assessed at 90 days confinement in jail.

The state insists that the appeal should be dismissed.

Judgment was pronounced on August 6, 1957, at the August-September term of court which terminated on the 7th day of October, 1957. Motion for new trial was filed on September 12, 1957, which was beyond the ten days provided by Art. 755, Vernon's Ann.C.C.P. No action was taken upon the motion by the court within twenty days after it was filed and it was not until October 15, 1957, which was after the expiration of the term, that appellant gave notice of appeal.

Under the record it therefore appears that appellant's motion for new trial was overruled by operation of law upon the expiration of twenty days from the time it was filed, which was at the August-September term of court, and the judgment became final upon the expiration of the term.

The notice of appeal being given after the expiration of the term came too late to confer jurisdiction upon this court. De Hay v. State, Tex.Cr.App., 294 S.W.2d 401.

The appeal is dismissed.

Opinion approved by the Court.