Dorsett v. State , 496 S.W.2d 98 ( 1973 )

OPINION

ODOM, Judge.

The conviction is for cattle theft. The punishment was assessed at ten years, probated.

Two grounds of error are alleged. The first complains of the court’s refusal to grant his motion for a new trial. He argues that it was error for the state to prove that more than two cattle were stolen.

The indictment alleges that the appellant stole two cattle from Kenneth Hunter. Hunter testified that at least six of his cattle were missing from his pasture and two of those were later found in Bee County. Others were located in Uvalde and Alice. Testifying in his own behalf, appellant admitted that he stole six cattle from Hunter and sold four of them. This testimony was admitted without objection, hence no error is preserved for review.

Further, the record reflects that the other four cattle were stolen out of the same pasture on the same occasion as the two head of cattle alleged in the indictment. This was res gestae of the offense. See, e.g., Buster v. State, Tex.Cr.App., 470 S.W.2d 887; Burgess v. State, 107 Tex.Cr.R. 90, 296 S.W. 318.

The second ground of error is that “The trial court erred in refusing and not granting the defendant’s requested bill of exception.”

The record reflects that notice of appeal was given on April 22, 1972, and the formal bill of exception was not filed with the clerk until August 9, 1972. The trial court refused the formal bill of exception because the same was not timely filed within 90 days after notice of appeal was given, pursuant to Article 40.09, Sec. 6(a), Vernon’s Ann.C.C.P. The court’s action in refusing the same was proper.

There being no reversible error, the judgment is affirmed.