No. 10082. | Tex. Crim. App. | Apr 28, 1926
Lead Opinion
The appellant was convicted in the District Court of Brazos County of unlawfully possessing intoxicating liquors, and his punishment assessed at one year in the penitentiary.
The record discloses that the judgment of conviction herein was dated October 12, 1925; and the motion for new trial was overruled and notice of appeal given on October 19, 1925, at which time the court granted appellant ninety days from and after the adjournment of court within which to prepare and file his statement of facts and bills of exception. The record further discloses that appellant's only bill of exceptions was filed January *579 23, 1926, and the statement of facts was filed January 26, 1926, both the statement of facts and bill of exceptions being filed more than 90 days after the date of the order overruling appellant's motion for a new trial and after notice of appeal had been given, but within 90 days after the adjournment of that term of court. The attorneys for the state move to strike out the bill of exceptions and statement of facts because same were filed more than ninety days after the date of the order overruling the motion for new trial and notice of appeal, the state's contention being based upon subdivisions 4 and 5 of Art. 760, 1925 Code of Criminal Procedure. Subdivisions 4 and 5 of Art. 760, supra, specifically state that appellant only has ninety days from and after giving notice of appeal within which to prepare and file his statement of facts and bills of exception. The new code went into effect on September 1, 1925, and was in force and effect prior to the date of the trial hereof. It is therefore manifest that said statement of facts and bill of exceptions being filed more than ninety days after notice of appeal, this court is without authority of law to consider same, and the motion of the attorneys for the state will have to be sustained. Bailey v. State, No. 10078, opinion delivered April 21, 1926, yet unreported.
With the statement of facts and bill of exceptions eliminated, and no error being shown in the record, the judgment of the trial court is in all things ordered affirmed.
Affirmed.
The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
Since the filing of his motion for rehearing, appellant has filed a written application, duly verified, requesting the withdrawal of said motion. The application is granted, and it is ordered that mandate issue upon the original hearing in which the judgment of the trial court was affirmed.
Motion withdrawn. *580