Rabel v. Grace

DICE, Judge. This is a petition for writ of mandamus to require the Hon. Charles W. Grace, Judge of the County Court at Law No. 2 of Bexar County, to order a notice of appeal entered of record in the minutes of the court and to require the clerk of the court to prepare and forward to this court a transcript of the proceedings in a certain cause on the docket of the court. From the records before us it appears that on October 30, 1959, the relator was tried and convicted in the County Court at Law No. 2 of Bexar County in Cause No. 113,747, of the offense of driving while intoxicated and her punishment assessed at 3 days in jail and a fine of $50. On such date, judgment was rendered and notice of appeal was given by relator in open court. Thereafter, the notice of appeal was withdrawn by relator’s counsel and on November 6, 1959, relator filed her original motion for a new trial in the cause. No action was taken by the court on the motion and none was requested by relator during the term of court which expired on December 4, 1959. After expiration of the term, relator presented to the court on December 14, 1959, a motion for permission to withdraw her motion for new trial and to reinstate her notice of appeal which motion was by the court refused. Under the record relator is not entitled to the relief prayed for as the notice of appeal which she seeks to have entered of record is shown to have been by her withdrawn. The motion for new trial filed by relator was overruled by operation of law upon the expiration of twenty days from the date it was filed and the judgment rendered against relator became final upon the expiration of the term of court on [492] December 4, 1959. De Hay v. State, 163 Tex. Cr. R. 516, 294 S. W. 2d 401 and Barton v. State, 165 Tex. Cr. R. 582, 310 S. W. 2d 90. Relator’s request to reinstate her notice of appeal made after the expiration of the term came too late. The petition for writ of mandamus is denied. Opinion approved by the Court.