Francis v. State , 132 Tex. Crim. 591 ( 1937 )

Robbery by assault is the offense; penalty assessed at confinement in the penitentiary for ten years.

The record is before us without statement of facts or bills of exception.

The judgment of conviction was rendered May 8, 1936. The motion for new trial was overruled on July 29, 1936, and notice of appeal given on that date. On October 26, 1936, appellant presented to the trial judge her affidavit of inability to pay for the statement of facts, which was eight-nine days after the date on which notice of appeal was given. Thus only one day remained for the preparation of the statement of facts in order that it might be filed within the ninety days allowed by law.

From the affidavit of the court reporter it appears that at the time of the filing of appellant's affidavit of inability to pay for the statement of facts he was engaged in reporting a contested criminal case which rendered it practically impossible for him to prepare the appellant's statement of facts within the prescribed time. No adequate explanation is given for the failure of the appellant to file her affidavit for a copy of the statement of facts at such time as would enable the court reporter to prepare the same within the ninety days after the overruling of appellant's motion for new trial and the giving of the notice of appeal. Under the circumstances reflected by the record, we think there was a lack of proper diligence upon the part of the appellant to procure the statement of facts within the time allowed by law. See Murphy v. State, 91 S.W.2d 738; Kelley v. State, 91 S.W.2d 343.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.