Ramirez v. State

293 S.W.2d 653, 163 Tex. Crim. 491, 1956 Tex. Crim. App. LEXIS 1142

Opinions

WOODLEY, Judge.

The offense is possession of marijuana, a narcotic drug; the punishment, 5 years.

The record shows that on December 7, 1955, verdict was returned, judgment rendered, sentence pronounced and recognizance on appeal in the sum of $5,000 entered into by appellant and his bondsmen.

The record further shows that a week later motion for new trial was filed, considered and overruled. The only notice of appeal found in this record was given on December 12, 1955, when the motion for new trial was overruled.

We have then a record which affirmatively shows that appellant is enlarged upon a recognizance upon appeal entered into seven days before notice of appeal to this court was given.

Art. 816 C.C.P. provides that when the defendant appeals and where bail is allowed he shall, if he be in custody, be committed to jail unless he duly enters into recognizance to appear and that no recognizance shall be taken if the defendant is not in custody of the sheriff at the time thereof.

Art. 827 C.C.P. provides that an appeal is taken by giving notice thereof in open court and having the same entered of record.

A recognizance on appeal entered into before notice of appeal was given is insufficient to confer jurisdiction on this court. Hallman v. State, 113 Tex. Cr. R. 100, 18 S.W. 2d 652.

The appeal is dismissed.