Dewberry v. State

283 S.W.2d 399, 162 Tex. Crim. 160, 1955 Tex. Crim. App. LEXIS 1582

• Court: Court of Criminal Appeals of Texas
• Decided: November 2, 1955
• Docket: No. 27,798
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is felony theft; the punishment, two years.

In view of our disposition of this cause, a recitation of the facts is not deemed necessary.

The transcript reveals that sentence was pronounced in the trial court and the appellant gave notice of appeal to this court. Subsequently, by order of the same court, appellant’s application to withdraw his notice of appeal was granted, and the sentence was probated; and no notice of appeal was thereafter given.

The state has urged that we affirm this conviction and hold void the order granting probation on the grounds that the order was entered at a subsequent term of court.

The validity of the order of the trial court setting aside the notice of appeal and probating sentence can be challenged here only by the appellant, because the state under the law has no right to invoke the appellate jurisdiction of this court. Article 5, Section 26, Constitution of Texas, and Article 812, V.A.C.C.P. The appellant does not challenge that order but relies thereon and insists that he is willing to abide thereby.

To follow the state’s contention would be to grant the state the right of appeal in a criminal case.

The appellant swears in his motion that he requested the deputy district clerk not to file the transcript and statement of facts in his case in this court, and now that the same has been filed he properly requests that any appeal that may now be before this court contrary to his wishes be dismissed. This is a right the appellant is authorized to pursue.

Accordingly, the appeal is dismissed.