Defendant is convicted and gets less than ten years.

Counsel announces intent to appeal in open court.

No paperwork is filed with appeals court.

1. Is the appeal bond still good?
2. Can I move the court to pick defendant up until proper appeal notification is filed?
3. Any other ideas are welcome.

Did the trial court not take the defendant into custody pending the posting of an appeal bond? I would request that the Court issue a capias and seek to have the defendant incarcerated pending the posting of an appeal bond.

I do not think oral notice to the Court of an intent to file an appeal is sufficient. In addition, the defendant must then post that bond in order to not be in custody.

I have never heard of a penitentiary bound defendant released pending appeal absent the filing of an appeal bond.

[This message was edited by Greg Gilleland on 06-01-06 at .]

Notice of appeal must be in writing filed with the clerk of the trial court within the times set by the rules of appellate procedure. If that time has run, file a motion to have the bond held insufficient and to have the sentence enforced. If that time has not run, wait.

Greg,

Sorry he did post a bond.

Problem is lack of proper filing with Appellate court.

John,

Thanks

There may be an old case out there that says the filing of an appeal bond is sufficient to serve as notice of appeal in a criminal case. In civil cases, there is a more lenient standard for perfecting appeal. There are civil cases that say a MNT is sufficient as indicating a desire to appeal. The CCA has generally been more strict, but I want to say there may be one on appeal bonds. That throws a crimp in things, if true. Only thing I found was Miles v. State, 842 S.W.2d 278, 279 n.1 (Tex. Crim. App. 1989)(per curiam). I don't know whether that is still good law.

The actual problem with your situation is that the appeal bond was approved without an appeal being perfected. "Until an appeal has been taken, the trial court is not authorized to permit the accused to enter into a recognizance on appeal." Jaynes, 296 S.W.2d 934.

I admit that if the filing of the bond itself complies with 25.2(c) as stated in Miles, 842 S.W.2d at 279 n. 1, then this argument does not fly. But, Miles is inconsistent with the decision in Jones as stated in Davis, 870 S.W.2d at 48.

Just ask the judge to revoke the bond for failure to appeal. I can't believe that a court would still consider an appeal bond to be notice of appeal.