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504 S.W.2d 512

McCuin v. State

Court of Criminal Appeals of Texas

Decided January 30, 1974

Court of Criminal Appeals of Texas · decided 1974-01-30

Cited by 11 later decisions — most recently January 1985

11 state decisions

Key passage — most relied on by later courts

““The phrase ‘good cause,’ as used in Article 44.08(e), V.A.C.C.P. authorizing the trial court to permit the giving of late notice of appeal, necessarily implies that such a finding will be based upon sufficient evidence. When the trial court does permit the giving'of a late notice of appeal it is subject to the review of this court to determine whether ‘good cause’ has been shown. Evidence in the record must support the trial court’s order. The supportive evidence should be by affidavit or sworn testimony. “This record does not contain an affidavit or sworn testimony supporting the trial court’s order granting delayed notice of appeal. In the absence of supporting evidence in the record, we cannot determine whether ‘good cause’ was shown in support of the order granting delayed notice of appeal.””

quoted by 1 later decision, including Farris v. State

Relies on Menasco v. State · Reed v. State · McDonald v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1974-01-30

View the full empirical analysis of this case →

¶1 OPINION

DAVIS, Commissioner.

¶2 Appeal is taken from a conviction for assault with intent to murder with malice; the punishment, assessed by the jury, seven (7) years.

¶3 On October 27, 1972, appellant appeared before the trial court with his retained attorney and was duly sentenced. At that time, appellant waived his right to appeal to this court orally and in writing. On November 21, 1972, the trial court received a written request from appellant asking for a free record. On April 23, 1973, the trial court entered an order allowing appellant to give notice of appeal. On the same day, after appellant had filed an affidavit of in-digency, the trial court ordered a free record for appellant and appointed an attorney to represent him on appeal.

¶4 Article 44.08(c), Vernon’s Ann. C.C.P., provides that notice of appeal shall be given or filed within ten (10) days after sentence is pronounced. Article 44.-08(e), V.A.C.C.P., allows the trial court to permit the giving of a late notice of appeal for good cause shown. Both a trial court’s granting of an out-of-time appeal in a ha-beas corpus proceeding under Article 11.07, V.A.C.C.P., and a trial court’s permitting late notice of appeal under Article 44.-08(e), supra, are subject to review by this court. Menasco and Hill v. State, 503 S.W.2d 273 (Tex.Cr.App.1973) (on motion to reinstate appeal); McDonald v. State, Tex.Cr.App., 501 S.W.2d 111; Perez v. State, Tex.Cr.App., 496 S.W.2d 627; Morrow v. State, Tex.Cr.App., 481 S.W.2d 144; Reed v. State, Tex.Cr.App., 481 S.W.2d 814. In order to sustain a trial court’s action granting a delayed appeal, there must be sufficient supportive evidence. 1 Menasco and Hill v. State (on motion to reinstate appeal), supra; McDonald v. State, supra; Perez v. State, supra ; Morrow v. State, supra; Reed v. State, supra. In the instant case, there is no evidence which would warrant the trial court’s granting a delayed appeal.

¶5 The appeal is dismissed.

¶6 Opinion Approved by the Court.

1

¶7 . In Menasco and Hill v. State (on motion to reinstate appeal), supra, this court said, “The supportive evidence should be by affidavit or sworn testimony.”

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