          OFFICE     OF THE AlTORNEY   GENERAL   OF TEX+
                                AUSTIN




IIoaorableRonry Sebesta
County Attorney
CSStXOF     hUflty
Eastr~op,Texas
Deer Sir:




                      he appeal was talcan,eta.**
               In Wavorro Y. Stat   (1940) 143 S. W; (2d) k81,the
'aonrtre-affixma the aeneral r ie that~afttor   notias 02 appeal
had been given,   whioh &id not'beeliwithdraw%.,*the oar tiKl.&S
wh;ichthe trial court may do. . ; is to 8qfktituM ‘lotit   or
destroyed reoox+ds.* Jadgs Beauohcfnp   In the ~aonr$~~aMg.inaX
opinion said: "ThBre is 110okatentionthat ,thetr@$ o~oti
did not have the power to aet aside the ordcir‘and*hat &ueetLon
HonorableHBnry,Sebesta,page 2



-ia not here passed upon" (top 0r page 1083, col. 1). How-
 ever, Judge Hawklne in the opinion on the motion for rehear-
 ing   stated:   -The trial court wae without jurisdictionto en-
 tsrtain the motion*
                 ._    _ to set aaide hia order overruling
                                                      .    the
                                                          ..-__de-
 renaant's     motion ror a new trial for the reason that =Sald
 notice of appeal was never withdrawn." And here Judge Hawkins
 re-statedanother general rule: *There is no question but that
 the trial court had oontrol over its judgment and orders during
 the term at which they were entered,provided the 4ourt had not
 lost jurieClctionby reason oi.the notioe of appeal. Said notioe
 ot appeal was never withdrawn." (Syl. 5-7,p. 1084).
           However, in Tore8 v. State, (1914) 166 S. H. 523,
at p. 526 (Syl. 14), It was held that an aooused. who on then
ovei-ruling 0r his m&ion for new trial gave notiae in open
oourt.of an appeal, oan than wlthdraw hie notioe of appeal --
as the~trial 4ourt has control Over its judgmentsduring the
tsw'at whlah such jttdmnt     waa rendered.
         9urhg the term at whloh the judgment ie reii-
     dared, the notiae of ,appaalmay be withdrawnan&
     the jurlsdictl~onor the.trfal.aourt rsinstated..e
     Ex mrte Maple; (1.990) 33 8. W. (2d) 735, at p.   -
        *.
         "It is the well-settledlaw oi the state
     that a defendant may~waivd every legal right ex-
     oept'the right or trial by jury, and that may ba
     waivedQaow In oertaln oases-andunder oertain air-
     oumat~na~s. Henoe, relator oould uaive all the
     errors, ii aw, whloh w8r,aoommitted in'the trial
     of the'case. He couLd also wlthdraw his notio4 or
     appeal; if he desired to do so,-eventhough his
     attorney wished to appeal.' Ex parte Wood, (1933)
     87 S. W.~ (2d) 489, at p. 488.
         The &ate&expression of the Court of Criminal Ap-
peals on this quaatlon is Williama v. State, (i94f) ,'zdS. W.
(2$)482,wherein that COW%, at p. 486, Syl.     , ,      :
         "It ie the general rule that a trial aourt
     hae rull power and aontrol or ita judgments, or-
     dere and deoraes, during the te~rmat which they.
     have been made, and that, in the exercise of that
.’




         Honorable Henry Sebesta, page 3



     -
              power, he may, at the same term of court, oorrect,
              modify, or set them aside. The rule has been rec-
              ognized In oases involvingnotice of appeal. Un-
              der the expreaa provieions of Art. 828,C.C.P., the
              giving 0r notice 0r appeal in a oriminal oaae SUB-
              psnda and arrest8 al& further pxoceedi s in the
              44oaein the trial court, pending detel-2nation or
              the appeal, except to substitute loat papepe.or
              records in the oases: Rotwithstandingthe atatute
              mentioned. the trial aourt is empowerad. under the
              general.rulementioned, at the request of the ao-
              cused. during the 8ame termof oourt., to set aside
              the notice or iwpeal.w  (&uph+s ourej
                  In the last analysis, our oourts by oomtruing the
         statute; declare the law and %t ia our duty to tosow  their
         construatlon;see Courta, Il..Tex.Fur. 83S, par..,fjS;Statutes,
         39 TOX.~ Jur.   174, par.2.                     .~   .

                  Answering your question; .WBthareiore~ky that the
         trial court, durisg the same term of,oqurt, mai~pbr&t'the
         derenilant'towithdraw her notloe oi appoaaa "




         Dw;dbr rt
         ‘APPFlOVED
                  ”IdAY 9,   1944      .’
         /a/ GEO. P. BL4CKBURW
         ACTIWG ATTORWEY GWWWSALOF TEKAS
                                             AgTRovED .
                                             0PIaI0mrcoI+6@rEE
                                             By B.W.B., @f$IIiMAW
