Smith v. State , 114 Tex. Crim. 483 ( 1929 )

Appellant contends on motion for rehearing that he had a statement of facts made and filed in the trial court and same was not sent up. He supports his claim by an affidavit that on or about the 9th day of October, 1929, he paid the Court Stenographer for a statement of facts and was assured by the Court Stenographer that the statement of facts would be sent up in time for hearing in this cause. The Court Stenographer files an affidavit that he delivered to him a statement of facts within three days after it was called for by appellant. The statement of facts was filed on December 3, 1929, in the trial court, and was filed in this Court on December 6, 1929. The trial court met on the 1st day of July, 1929, and adjourned on the 5th day of October, 1929. Notice of appeal was given on July 23, 1929, and an order entered granting appellant eighty days within which to prepare and file his record. The statement of facts was not filed in time for consideration. The Court Stenographer's affidavit is undenied that he delivered to appellant a statement of facts within three days from the time he first called for one. While the statement of facts is not entitled to be considered, we have carefully read the same. The facts are abundantly sufficient to show appellant's guilt. There are no bills of exception in the record and we are further of the opinion that it would avail appellant nothing to have such statement of facts considered.

Motion for rehearing is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.