MORROW, Presiding Judge.
This is an application for a writ of mandamus to compel the preparation and forwarding to this court of the record.
It appears that J. J. Maple was indicted and tried in the District Court of Harris County for the offense of murder. He was represented by counsel appointed by the court. A plea of guilty was entered. On motion for new trial, his attorney, through his own affidavit and that of others, presented the issue of the insanity of Maple. The affidavits attached to the motion raised the question of insanity at the time the plea of guilty was entered and at the time the motion for new trial was overruled. A writ of mandamus is sought upon the ground that notice of appeal had been given and that in consequence thereof the jurisdiction of this court attached, but that the judge and officers in charge of the trial court are unwilling to recognize the appellant’s alleged appeal.
From the papers presented here, it appears that the appellant was tried on the first day of October and on the 18th day of that month his motion for new trial was overruled and the following order was entered:
“On this the 18th day of October, A. D., 1930, came on to be heard the Defendant’s First and Second Supplemental Motion for a New Trial in the above entitled and numbered cause; and appeared the parties, the State by her District Attorney, and the defendant, J. J. Maple, in person and by Counsel, and the said motion having been heard by the Court, and the evidence and argument thereon, the Court is of the opinion that the said motion should be overruled and refused.
It is therefore considered, ordered and adjudged by the Court that the said motion for a new trial be refused and overruled, that said motion be stricken from the record, to which order and judgment of the court the defendant, J. J. Maple, excepts and gives notice of appeal in open court from the rulings, of this court to the Court of Criminal Appeals of the State of Texas, at Austin, which notice of appeal is here now entered of record on the minutes of this court.
And the defendant at this time withdrew notice of appeal and accepted sentence personally
The legal question upon which the application is based grows out of the contention that without the consent of his attorney, the appellant was without authority to withdraw the notice of appeal and that his effort to do so was nugatory, and that by virtue of the notice of appeal, the jurisdiction of this court attaches.
From the papers before this court, it appears that the judge in the trial court regarded the entry of the judgment quoted above overruling the motion for new trial and giving notice of appeal as not accurately portraying the occurrence, and during the term of court caused to be spread upon the minutes an amended judgment, which reads thus:
“On this, the 18th day of October, A. D., 1930, came on to be heard the Defendant’s Motion for a New Trial in the above entitled and numbered cause; and appeared the parties, the State by her District Attorney, and the Defendant, J. J. Maple, in person and by Counsel, and the said motion having been heard by the Court, and the evidence and argument thereon, the Court is of the opinion that the said motion should be overruled and refused.
It is therefore considered, ordered and adjudged by the Court that the said Motion for a New Trial be refused and overruled, and defendant at said time requested that sentence be pronounced at once.”
Sentence was made fixing November 18, 1930, as the day of execution.
In the statute, Art. 827, C. C. P., it is said:
“An appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record.”
In Art. 822, C. C. P., it is said:
“An appeal may be prosecuted immediately to the Court of Criminal Appeals, and the clerk shall without delay make out and forward the record to the Court of Criminal Appeals.”
Art. 828, C. C. P., reads thus:
“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal is taken.”
In felonies less than capital the sentence precedes the appeal. In, capital cases, however, sentence is not pronounced until after the judgment of affirmance is certified by the Court of Criminal Appeals. Art. 769, C. C. P. In capital cases, the statute requires that the court appoint counsel to represent the accused if he is too poor to employ counsel of his own selection. If the motion, as presented here, disclosed a notice of appeal duly entered of record and a subsequent effort upon the part of the accused to withdraw the appeal in the court below, the question of authority would be presented,
that is, whether the control of the procedure would rest with the appellant or with his counsel. Unless, however, the notice of appeal entered in the trial court is in such condition as to transfer the jurisdiction to this court, the question mentioned would not arise. Looking to the notice of appeal upon which the applicant relies, which is set out above and which concludes with the statement: “And the defendant at this time withdrew notice of appeal and accepted sentence personally,” it appears that the order was entered while the appellant, as well as his counsel, was present in court. During the term at which the judgment is rendered, the notice of appeal may be withdrawn and the jurisdiction of the trial court reinstated. See Tores v. State, 74 Tex. Cr. R. 37. If notice of appeal is given but omitted from the record, the entry may be subsequently made.
To confer jurisdiction upon this court to review a judgment of conviction, the giving and entering in the minutes of the trial court of the notice of appeal is essential. See Sauzoda v. State, 86 Tex. Cr. R. 461; Haynie v. State, 92 Tex. Cr. R. 45; Ex parte Christian, 99 Tex. Cr. R. 99; Roberts v. State, 99 Tex. Cr. R. 492; Thweatt v. State, 110 Tex. Cr. R. 603. The entry upon the minutes of the court incorporated in the judgment overruling the motion for new trial, as we are constrained to construe it, shows that the notice of appeal which was given was withdrawn. Nothing in the minutes of the court suggest that the withdrawal was not regular, or that it was opposed by counsel for the appellant. The withdrawal, as above stated, on its face would oust the jurisdiction of the appellate court and reinstate that of the trial court. Nothing in the record of the trial court, as presented' here, shows any subsequent effort to give notice of appeal. On the contrary, the amended order of the court, reciting the presence of both the accused and his counsel, shows no notice of appeal. If such effort was made, or if the judgment overruling the motion for new trial and the entry therein mentioned, does not correctly portray the transaction as it- took place, the place to make the record speak the whole truth is in the trial court and not in this court. The statute on the subject, Art. 827, C. C. P., contains the following language:
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MORROW, Presiding Judge.
This is an application for a writ of mandamus to compel the preparation and forwarding to this court of the record.
It appears that J. J. Maple was indicted and tried in the District Court of Harris County for the offense of murder. He was represented by counsel appointed by the court. A plea of guilty was entered. On motion for new trial, his attorney, through his own affidavit and that of others, presented the issue of the insanity of Maple. The affidavits attached to the motion raised the question of insanity at the time the plea of guilty was entered and at the time the motion for new trial was overruled. A writ of mandamus is sought upon the ground that notice of appeal had been given and that in consequence thereof the jurisdiction of this court attached, but that the judge and officers in charge of the trial court are unwilling to recognize the appellant’s alleged appeal.
From the papers presented here, it appears that the appellant was tried on the first day of October and on the 18th day of that month his motion for new trial was overruled and the following order was entered:
“On this the 18th day of October, A. D., 1930, came on to be heard the Defendant’s First and Second Supplemental Motion for a New Trial in the above entitled and numbered cause; and appeared the parties, the State by her District Attorney, and the defendant, J. J. Maple, in person and by Counsel, and the said motion having been heard by the Court, and the evidence and argument thereon, the Court is of the opinion that the said motion should be overruled and refused.
It is therefore considered, ordered and adjudged by the Court that the said motion for a new trial be refused and overruled, that said motion be stricken from the record, to which order and judgment of the court the defendant, J. J. Maple, excepts and gives notice of appeal in open court from the rulings, of this court to the Court of Criminal Appeals of the State of Texas, at Austin, which notice of appeal is here now entered of record on the minutes of this court.
And the defendant at this time withdrew notice of appeal and accepted sentence personally
The legal question upon which the application is based grows out of the contention that without the consent of his attorney, the appellant was without authority to withdraw the notice of appeal and that his effort to do so was nugatory, and that by virtue of the notice of appeal, the jurisdiction of this court attaches.
From the papers before this court, it appears that the judge in the trial court regarded the entry of the judgment quoted above overruling the motion for new trial and giving notice of appeal as not accurately portraying the occurrence, and during the term of court caused to be spread upon the minutes an amended judgment, which reads thus:
“On this, the 18th day of October, A. D., 1930, came on to be heard the Defendant’s Motion for a New Trial in the above entitled and numbered cause; and appeared the parties, the State by her District Attorney, and the Defendant, J. J. Maple, in person and by Counsel, and the said motion having been heard by the Court, and the evidence and argument thereon, the Court is of the opinion that the said motion should be overruled and refused.
It is therefore considered, ordered and adjudged by the Court that the said Motion for a New Trial be refused and overruled, and defendant at said time requested that sentence be pronounced at once.”
Sentence was made fixing November 18, 1930, as the day of execution.
In the statute, Art. 827, C. C. P., it is said:
“An appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record.”
In Art. 822, C. C. P., it is said:
“An appeal may be prosecuted immediately to the Court of Criminal Appeals, and the clerk shall without delay make out and forward the record to the Court of Criminal Appeals.”
Art. 828, C. C. P., reads thus:
“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal is taken.”
In felonies less than capital the sentence precedes the appeal. In, capital cases, however, sentence is not pronounced until after the judgment of affirmance is certified by the Court of Criminal Appeals. Art. 769, C. C. P. In capital cases, the statute requires that the court appoint counsel to represent the accused if he is too poor to employ counsel of his own selection. If the motion, as presented here, disclosed a notice of appeal duly entered of record and a subsequent effort upon the part of the accused to withdraw the appeal in the court below, the question of authority would be presented,
that is, whether the control of the procedure would rest with the appellant or with his counsel. Unless, however, the notice of appeal entered in the trial court is in such condition as to transfer the jurisdiction to this court, the question mentioned would not arise. Looking to the notice of appeal upon which the applicant relies, which is set out above and which concludes with the statement: “And the defendant at this time withdrew notice of appeal and accepted sentence personally,” it appears that the order was entered while the appellant, as well as his counsel, was present in court. During the term at which the judgment is rendered, the notice of appeal may be withdrawn and the jurisdiction of the trial court reinstated. See Tores v. State, 74 Tex. Cr. R. 37. If notice of appeal is given but omitted from the record, the entry may be subsequently made.
To confer jurisdiction upon this court to review a judgment of conviction, the giving and entering in the minutes of the trial court of the notice of appeal is essential. See Sauzoda v. State, 86 Tex. Cr. R. 461; Haynie v. State, 92 Tex. Cr. R. 45; Ex parte Christian, 99 Tex. Cr. R. 99; Roberts v. State, 99 Tex. Cr. R. 492; Thweatt v. State, 110 Tex. Cr. R. 603. The entry upon the minutes of the court incorporated in the judgment overruling the motion for new trial, as we are constrained to construe it, shows that the notice of appeal which was given was withdrawn. Nothing in the minutes of the court suggest that the withdrawal was not regular, or that it was opposed by counsel for the appellant. The withdrawal, as above stated, on its face would oust the jurisdiction of the appellate court and reinstate that of the trial court. Nothing in the record of the trial court, as presented' here, shows any subsequent effort to give notice of appeal. On the contrary, the amended order of the court, reciting the presence of both the accused and his counsel, shows no notice of appeal. If such effort was made, or if the judgment overruling the motion for new trial and the entry therein mentioned, does not correctly portray the transaction as it- took place, the place to make the record speak the whole truth is in the trial court and not in this court. The statute on the subject, Art. 827, C. C. P., contains the following language:
“If notice of appeal is given at the term at which the conviction is had and the same is not entered of record, then by making proof of the fact, the judgment of the court trying the cause shall order the same entered of record either in term time or vacation by entering in the minutes of his court an order to that effect.”
If, in fact, there was given notice of appeal which would transfer jurisdiction to this court, and the record does not in fact portray it, the statute mentioned above (Art. 827) points to the method of relief; that is, by motion before the court which tried the case to make the record show the notice of appeal. The failure to grant such relief upon proper showing might be the subject of review, and if it appeared on appeal that in refusing to grant the relief, that is, to enter the notice of appeal, there was an abuse of discretion, this court might have jurisdiction on the merits of the appeal. In the present instance, the effort is by ex parte affidavits to impeach the record in the trial court which is regarded by this court insufficient to confer upon it jurisdiction of the appeal. The record cannot be so impeached.
The application for mandamus is denied.
Denied.
Hawkins, J., absent.