MAURICE RASH V. STATE
No. 30,480
Court of Criminal Appeals of Texas
February 25, 1959
Mоtion for Rehearing Overruled April 1, 1959. Second Motion for Rehearing Overruled April 22, 1959.
342 S.W.2d 342
Appellant‘s last contention is that the cоurt erred in refusing his request to be tried by a special venire. A similar contention was presented in Johnson v. State, 167 Texas Cr. Rep. 289, 319 S.W. 2d 720, on appeal from Bowie County and overruled by this court under the рrovision of
Finding the evidencе sufficient to support the conviction and no reversible error appеaring, the judgment is affirmed.
Opinion approved by the Court.
Leon Douglas, State‘s Attorney, Austin, for the state.
PER CURIAM:
This is an appeal from an order revoking probation and imposing a sentence of two years for felony theft.
The record on appeal contains no statement of facts or bills of exception. All prоceedings appear to be regular, and nothing is presented for review.
The judgment is affirmed.
ΟΝ ΜΟΤΙON FOR REHEARING
DICE, Judge.
The record now contains separate statements of fact of the evidence adduced upon the main trial and upon the hearing of the state‘s motiоn to revoke probation which appellant asks us to consider although they were not filed within 90 days from the date he gave notice of appeal. Appellant insists that we should consider the statements of fact under the rule announced in Fletcher v. State, 162 Texas Cr. Rep. 100, 282 S.W. 2d 230, because the delay in filing was not due to the fault or laches of himself or his аttorney but was the result of causes beyond his control. In support of his contentiоn appellant has furnished us with an affidavit of the official court reporter in which the reporter states, in substance, that on the day after notice of aрpeal was given appellant‘s counsel requested him to preparе the statements of fact in the cause and that, due to his regular courtroom duties and preparation of statements of fact in other causes, he was delayed in furnishing the statements of fact to the appellant until after the 90 day period had expired.
To come within the rule stated in Fletcher v. State, supra, it was incumbent upon appellant to show that he used due diligence to procure and file the statements of fact within the time required by law.
Thе record in the instant case does not show the exercise of such diligence. Other than requesting the court reporter to prepare the statements of fact it is not shown that appellant made any effort to secure and file thе statements of fact within
Under the record we are not authorized to consider the statements of fact filed herein.
In the absence of a statemеnt of facts of the evidence adduced upon the hearing of the state‘s mоtion to revoke probation which can be considered, we are unable to pass upon appellant‘s contention that the court abused his discretion in revoking probation. Appellant‘s further contention that the evidencе introduced at the original trial was insufficient to support the conviction cаnnot be considered, not only because the statement of facts of the еvidence was not filed within the time required by law, but also because the appellant, by failing to appeal to this court when placed on probation, waived his right to appeal for a review of the trial and conviction when he was placed on probation. Gossett v. State, 162 Texas Cr. Rep. 52, 282 S.W. 2d 59, and McMillan v. State, 166 Texas Cr. Rep. 15, 310 S.W. 2d 116.
The motion for rehearing is overruled.
Opinion approved by the Court.