Obarts v. State

320 S.W.2d 816 (1959)

Wanda Harper OBARTS, Appellant, v. STATE of Texas, Appellee.

No. 30414.

Court of Criminal Appeals of Texas.

February 11, 1959.

*817 No attorney on appeal for appellant.

Henry Wade, Dist. Atty., Paul W. Leech and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is operating a motor vehicle upon a public highway while intoxicated; the punishment, 30 days in jail and a fine of $100.

The verdict was returned on May 23, 1958, and judgment was entered.

Motion for new trial was filed on the same day. Amended motion for new trial was filed on June 12, 1958.

The amended motion for new trial was overruled by operation of law at the expiration of the twenty days allowed by Art. 755, Vernon's Ann.C.C.P. and the judgment became final. See Mahan v. State, 163 Tex.Cr.R. 36, 288 S.W.2d 508; De Hay v. State, 163 Tex.Cr.R. 516, 294 S.W.2d 401; Atkinson v. State, Tex.Cr. App., 299 S.W.2d 951; Barton v. State, Tex.Cr.App., 310 S.W.2d 90; Pruitt v. State, Tex.Cr.App., 310 S.W.2d 338; Brinkley v. State, Tex., 320 S.W.2d 855; Torrez v. State, Tex., 316 S.W.2d 417; Brantley v. State, Tex., 320 S.W.2d 825.

No notice of appeal was given at the term of court during which the judgment was rendered and became final, as required by Art. 827, V.A.C.C.P.

On July 7, 1958, the court entered an order overruling appellant's motion for new trial and pronounced sentence reciting that appellant gave notice of appeal.

In view of the majority holding in Feagin v. State, Tex.Cr.App., 310 S.W.2d 99, holding void the amendment of Art. 768, V.A.C.C.P., providing for sentence in misdemeanor cases as well as felonies, the sentence is a nullity and the notice of appeal therein comes too late.

The appeal is dismissed.