
    OFFIELD v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.
    On Motion for Rehearing, March 22, 1911.)
    1. Criminal Law (§ 1009) — Appeal and Error — Notice of Appeal,
    Code Cr. Proc. art. 872, provides that a defendant, upon conviction, may appeal “under the rules herein prescribed”; article 882 provides that an appeal may be taken by defendant at any time during the term at which the conviction was had; and article 883 provides that an appeal is taken by giving notice thereof, etc. Held, .that where accused was convicted at a term ending September 3, 1910, and the only notice of appeal appears to have been given October 1, 1910, the appeal must be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2691-2699; Dec. Dig. § 1069.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1081) — Appeal and Error-Notice op Appeal.
    Code Cr. Proc. art. 884, provides that in cases where, after notice of appeal has been given, the record or any portion thereof has been destroyed, it may be substituted in the lower court, if the court be then in session, and when so substituted, the transcript may be prepared and sent up as in other cases, and, in case the court from which the appeal is taken is not then in session, the Court of Appeals shall postpone the consideration of the appeal until the next term of court from which the appeal is taken. Held, that the trial court, under this article, is without authority to enter a nunc pro tunc order, so as to confer jurisdic- ’ tion on the appellate court, and where the notice of appeal was. given during the term at which conviction was had, and the clerk of the court failed to enter the- notice in the minutes of the court, although entered in the motion docket, jurisdiction of an appeal is not given by subsequently entering the notice nunc pro tunc.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2722; Dec. Dig. § 1081.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    H. L. Offield, alias Roy James, was convicted of burglary, and appeals.
    Appeal dismissed.
    Lattimore, Cummings, Doyle & Bouldin', for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otlier oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

The appellant in this case was indicted at the June term of the district court of Tarrant county, charged with burglary. 1-Ie was convicted, and sentenced to two years’ confinement in the penitentiary.

It appears from the record that the term of court at which appellant was tried began on June 6, 1910, and adjourned September 3, 1910, and at this term of court no notice of appeal was given or entered of record. The only notice of appeal in the record appears to have been given and entered of record on October 1, 1910, about four weeks after the adjournment of the term at which appellant was tried. Our Code of Criminal Procedure provides:

“Art. 872. A defendant in any criminal action, upon conviction, has the right to appeal under' the rules herein prescribed.”
“Art. 882. An appeal may be taken by the defendant at any time during the term of the court at which the conviction was had.
“Art. 883. An appeal is taken by giving notice thereof in open court and having the same entered of record.”

In Clark v. State, 3 Tex. App. 338, it is held: “An appeal taken without notice given at the term at which the conviction was had will confer no jurisdiction upon the appellate court.” Even in death penalty cases, in Roan v. State, 65 S. W. 1068, in order to clothe this court with jurisdiction, the appeal must be taken at the term at which the defendant was tried and convicted. Having failed to give notice of appeal during the term, appellant forfeited his right to appeal. Morse v. State, 39 Tex. Cr. R. 566, 47 S. W. 645, 50 S. W. 342; Wilcox v. State, 31 Tex. 586, and other cases cited.

No notice of appeal having been given and entered of record at the term of court at which the defendant was tried, the appeal is dismissed.

On Motion for Rehearing.

At a former day of this term this appeal was dismissed, because the record did not disclose that notice of appeal was given and entered of record at the term of court at which defendant was tried. Appellant has filed a motion for a rehearing in this cause, in which he alleges that on the day sentence was passed he did give notice of appeal to this court, and attaches thereto the certificate of the judge before whom the case was tried, and the clerk of the court, that in fact he did, at the term at which he was tried, in open court give notice of appeal. ' It also appears from the papers now on file that since the entry of the judgment dismissing this cause the following proceedings have been had in the court originally trying this cause:

“And now, in the above entitled and numbered cause, comes the defendant, H. L. Of-field, alias Roy James, and respectfully shows to the court that this cause is pending on appeal before the Court of Criminal Appeals, and that heretofore, on June 16, 1910, this defendant was convicted, and on July 11, A. D. 1910, defendant filed in this cause his motion for a new trial,- which was by this court stricken out because not filed within two days, on September 3, A. D. 1910, and that on said date the defendant then and there in open court excepted and gave notice of appeal to the Court of Criminal Appeals of the state of Texas, which said notice of appeal was by this court entered of record upon the motion docket; but the clerk of this court, in writing up the minutes of said court, failed to enter same in the minutes of this court, as will more fully appear of record in the motion docket of this court, to which reference is here made, where said notice, of appeal was entered during the June term of said court, on, to wit, September 3, A. D. 1910, which was the last day of said term. He therefore prays that, as said notice of appeal was in fact given by defendant during the term of this court at which said cause was tried, and the same was by this court entered upon the docket of said court, but the failure to enter same in the minutes of this court was not through any fault or negligence of appellant or his counsel, that this court here order E. J. Brock, Jr., clerk of this court, to enter said order in the minutes of this court, together with the notice of appeal as then given nunc pro tunc.
“State of Texas v. H. L. Offield, alias Roy James. Order on Motion to Enter Judgment Nunc. Pro Tunc. March 9, 1911. Be it remembered that on this day came on to be heard the motion of the defendant in the above styled and numbered cause to enter herein order on motion to strike out and dismiss motion for new trial that was heard September 3, 1910, and the court- having heard said motion, and it appearing to the court that a ruling was had as stated' in said motion, but that said motion was never entered of record, and it is therefore ordered, adjudged, and decreed by the court that the order be now here entered as of September 3, 1910, as follows, to wit:
“The State of Texas v. H. L. Offield, alias Roy James. Nos. 19,099-19,101. Motion to Strike Out and Dismiss Motion for New Trial Sustained. September 3, 1910. On this day came on to be heard the motion of the state of Texas herein to strike out and dismiss the defendant’s motion for a hew trial herein, and the court, after hearing said motion and being fully advised in the premises, is ctf the opinion that same should be and is hereby sustained. It is therefore ordered, adjudged, and decreed by the court that the motion of the defendant, H. L. Of-field, alias Roy James, for a new trial herein, be and the same is hereby dismissed, to, which action and ruling of the court the defendant in open court excepted, and gave notice of appeal to the Court of Criminal Appeals for the state of Texas.”

It will be' seen by the above that the notice of appeal was not' entered of record in the minutes until March 9,1911, whereas the term of court at which defendant was tried adjourned September 3, 1910. Article 884 of the Code of Criminal Procedure provides: “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: Provided, that in cases where, after notice of appeal has been given, the record or any portion thereof is lost or destroyed, it may be substituted in the lower court, if said court be then in session, and when so substituted the transcript may be prepared and sent up as in other cases. In case the court from which the appeal was taken be not then in session, the. Court of Appeals shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken, and the said record shall be substituted at said term, as in other cases.”

In construing this article this court has held that the trial court is without authority to enter a nunc pro tunc order, so as to confer jurisdiction on this court. Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668; Lewis v. State, 34 Tex. Cr. R. 126; 29 S. W. 384, 774, 30 S. W. 231; Youngman v. State, 38 Tex. Cr. R. 459, 42 S. W. 988, 43 S. W. 519; Fairchild v. State, 23 Tex. 176; Hughes v. State, 33 Tex. 683; Solari v. State, 3 Tex. App. 482; Johnson v. State, 8 Tex. App. 671; Hicklin v. State, 31 Tex. 492; Long v. State, 3 Tex. App. 321, in which it is said: “The notice, of appeal was not entered of record, though the clerk certifies that the notes made by the judge upon his docket show that defendant did give notice of appeal. The entries on the judge’s docket will not supply the place of or supersede the necessity for an entry upon the record.” See, also, Lawrence v. State, 14 Tex. 432; Hughes v. State, 33 Tex. 683.

If ’ this were an original proposition, the writer individually would be inclined to hold that, where notice of appeal had been given at the proper time and entry made on the judge’s docket, a nunc pro tunc order might be made at a later day incorporating the entry of the notice of appeal ’in the minutes; but as this article of the statute has been construed by this court in an unbroken line of decisions holding that, if the notice of appeal is not entered of record in the minutes of the court at the term at which the case is tried, the lower court would not have authority to enter any order in the case, except in cases where the order is lost or destroyed, and in deference to those decisions, the motion for rehearing is overruled.  