Bagley v. State

70 S.W.2d 177, 126 Tex. Crim. 1, 1934 Tex. Crim. App. LEXIS 502

Opinion

HAWKINS, Judge.

Judge. — Conviction is for theft of property less than five dollars in value, the punishment assessed being a fine of ten dollars.

In the transcript the verdict of the jury is copied, and immediately after the verdict we find the following: “To which the defendant excepted and gives notice of appeal. Vance Swain, County Judge.”

Article 827, C. C. P., makes a notice of appeal given in open court and “entered of record” a prerequisite of appeal. There is no showing in the transcript that notice of appeal was ever carried into the minutes of the court. A docket entry alone would not be sufficient; neither would a notice of appeal simply filed among the papers in the case. Davis v. State, 118 Tex. Cr. R., 240, 40 S. W. (2d) 153; Casey v. State, 116 Tex. Cr. R., 111, 32 S. W. (2d) 461; Wheeler v. State, 42 S. W. (2d) 69.

If in fact the notice of appeal was carried into the court minutes appellant can show it by a supplemental transcript properly verifying such entry. If the notice of appeal was omitted from the court minutes the proper way to have it incorporated therein is pointed out in Art. 827, C. C. P.

As the record appears here now the appeal must be dismissed.

Dismissed.