Blackman v. State

20 S.W.2d 783, 1929 Tex. Crim. App. LEXIS 985

• Court: Court of Criminal Appeals of Texas
• Decided: June 12, 1929
• Docket: No. 12617
• Status: Published

Opinions

LATTIMORE, J.

Conviction for driving an automobile upon a public highway while intoxicated; punishment, 45 days in the county jail.

The state’s attorney with this court moves to dismiss this appeal upon the ground that the order overruling the motion for new trial merely sets out: “Defendant then and there excepted and gave notice of appeal.” It is insisted that the order of the court should specifically name the Court of Criminal Appeals of the State of Texas. There are authorities holding in line with this contention of the state. See Sauzeda v. State, 80 Tex. Cr. R. 401 210 S. W. 1098; Hill v. State, 108 Tex. Cr. R. 335, 300 S. W. 70. There may be other similar holdings. Article 827, Code Cr. Proc. 1925, provides specifically that an appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and haying the same entered of record. It will be observed that nothing in the statute requires the “notice of appeal” to name the particular court to which appeal iis taken. There is but one court in this state to which an appeal can be taken from a judgment of conviction in a criminal case in either the county or any district'court of this state, and that is the Court of Criminal Appeals. It appears to us upon mature consideration that this court should not by judicial legislation require at the hands of one convicted in said courts a more specific notice of appeal than is required by the statute itself. It would certainly seem fair and just that one endeavoring to appeal his ease, with the open statute of the state before him, who followed with exactness the requirements of that statute, should not be deprived of his right to consideration of his appeal in the only court to which such appeal could be taken, because he did not know that the decisions of this court required him to put something into such notice beyond that which the statute required. The cases specifically named above will be overruled in so far as they affect the question under discussion, as will any others holding contrary to what is here decided. Notices of appeal to this court, when given at the proper time and entered of record as is required by statute, will be held sufficient without naming specifically the Court of Criminal Appeals.

This’record is before us without any bills of exception. We have carefully examined the statement of facts and find the usual condition of conflict; the witnesses for the state testifying that appellant was intoxicated at the time mentioned and while driving his car, while the witnesses for the defense deny that he was in such condition. The jury having solved the question adversely to appellant, we are constrained to give effect to their finding.

The judgment will be affirmed.