'aonrt re-affixma the aeneral r ie that~afttor notias 02 appeal had been given, whioh &id not'beeli withdraw%., *the oar tiKl.&S wh;ich the trial court may do. . ; is to 8qfktituM ‘lotit destroyed reoox+ds.* Jadgs Beauohcfnp In the ~aonr$~~ aMg.inaX opinion said: "ThBre is 110 okatention that ,the tr@$ o~oti did not have the power to aet aside the ordcir‘and *hat &ueetLon *2 Honorable HBnry,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- -The trial court wae without jurisdiction to en- ing stated: 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 ..- __ renaant's motion ror a new trial for the reason that =Sald notice of appeal was never withdrawn."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-stated another 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 jurieClction by 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 Said notioe ot appeal was never withdrawn."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 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 judgments during the tsw'at whlah such jttdmnt waa rendered.

9urhg the term at whloh the judgment ie reii- dared, the notiae of ,appaal may be withdrawnan& the jurlsdictl~on or the.trfal. aourt rsinstated..e Ex mrte Maple; (1.990) 33 8. W. (2d) 735, at p. -

*.

"It is the well-settled law 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-and under oertain air- oumat~na~s. Henoe, relator oould uaive all the errors, ii aw, whloh w8r,a oommitted in'the trial of the'case. He couLd also wlthdraw his notio4 appeal; if he desired to do so,-even though 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~rm at which they.

have been made, and that, in the exercise of that *3 .’

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 involving notice of appeal. Un- der the expreaa provieions of Art. 828,C.C.P., the giving notice 0r appeal in a oriminal oaae SUB- psnda and arrest8 al& further pxoceedi s in the 44oae in the trial court, pending dete l-2 nation the appeal, except to substitute loat papepe.or records in the oases: Rotwithstanding the atatute mentioned. the trial aourt is empowerad. under the general.rule mentioned, 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; .WB thareiore~ky that the trial court, durisg the same term of,oqurt, mai~pbr&t'the derenilant'to withdraw her notloe oi appoaaa " Dw;dbr rt

‘APPFlOVED ” IdAY 9, 1944 .’ /a/ GEO. P. BL4CKBURW

ACTIWG ATTORWEY GWWWSALOF TEKAS

AgTRovED . 0PIaI0mr coI+6@rEE By B.W.B., @f$IIiMAW