# Ex Parte Caldwell

> Court of Criminal Appeals of Texas · October 14, 1964 · 383 S.W.2d 587

URL: https://www.frixlaw.com/law-library/cases/9675628

## Case

- **Full name:** Ex Parte Oliver CALDWELL
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 14, 1964
- **Citations:** 383 S.W.2d 587; 1964 Tex. Crim. App. LEXIS 1107
- **Precedential status:** Published
- **Opinion:** On rehearing by Woodley
- **Judges:** Morrison, Woodley
- **Cited by:** 212 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9675628

## Opinion text

ON STATE’S MOTION FOR REHEARING
WOODLEY, Presiding Judge.
The State moves for rehearing in this cause and in cause No. 36,882, Caldwell v. State of Texas, Tex.Cr.App., 383 S.W.2d 590 , in which the appeal was dismissed for want of jurisdiction.
We treat the State’s motion as a motion to re-instate the appeal in cause No. 36,882 .and for rehearing in this cause.
The State is not in disagreement with the long established precedent that no death penalty will be affirmed without a statement of facts which this Court may review in passing upon the sufficiency of the evidence.
We do not understand that the States takes issue with our holding that the conviction cannot be successfully attacked by habeas corpus on the ground of insufficient evidence.
There can be no doubt that, in the absence of a notice of appeal, this Court is without jurisdiction to enter any order other than to dismiss the appeal. Cases are legion where this rule has been invoked by the state. Many such cases are listed under Art. 827 Vernon’s Ann.C.C.P., Note 2.
The State’s position here is that the transcript and statement of facts in our cause No. 36,882 were furnished upon request of the State, and the State has requested that this Court “consider said case as though a timely notice of appeal had been filed, and by its action waived all objections to the necessity of a timely notice of appeal.”
Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist. State v. Olsen (Tex.) 360 S.W.2d 398 .
Art. 827 V.A.C.C.P. prescribes the manner by which the Court of Criminal Appeals acquires jurisdiction of an appeal. Where the mode of acquiring jurisdiction is prescribed by statute, substantial compliance therewith is essential or the proceedings will be a nullity. 21 C.J.S. Courts § 80.
It follows that this Court is without authority to entertain the appeal in our cause No. 36,882 by consent, request or waiver of the State.
The State’s motion for rehearing in this cause and to re-instate the appeal in cause No. 36,882 is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9675628. Public record. Not legal advice.