De Hay v. State

294 S.W.2d 401 (1956)

Roy George DE HAY, Appellant, v. The STATE of Texas, Appellee.

No. 28462.

Court of Criminal Appeals of Texas.

October 17, 1956.

*402 No attorney for appellant of record on appeal.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for unlawfully practicing medicine; the punishment, 30 days in jail and a fine of $400.

The state contends that this appeal should be dismissed because no notice of appeal was given during the term of court at which the judgment of conviction was rendered and entered or during the term in which the motion for a new trial was overruled.

The original motion for a new trial was timely filed September 30, 1955. This was during the August Term of court which expired October 1, 1955. Under the provisions of Art. 755, Vernon's Ann. C.C.P., the original motion not having been overruled during the term (August Term) at which it was filed it was pending for disposition at the October Term. Thurman v. State, Tex.Cr.App., 286 S.W.2d 941.

No action was taken by the trial court on the motion within twenty days after it was filed. Therefore, it was overruled by operation of law on October 20, 1955. Mahan v. State, Tex.Cr.App., 288 S.W.2d 508. No notice of appeal was given at the October Term, 1955, of said court. Therefore, the judgment became final upon the expiration of the October Term. The state's motion to dismiss the appeal is granted.

The appeal is dismissed.

Opinion approved by the court.