Brown v. State

282 S.W.2d 224, 162 Tex. Crim. 85, 1955 Tex. Crim. App. LEXIS 1550

Opinions

DICE, Judge.

Appellant was convicted of the offense of procuring under Art. 525, P.C., and assessed punishment of a fine of $100.00 and confinement in the county jail for 90 days.

The record reflects that the judgment from which appellant brings this appeal was rendered and entered against him on September 28, 1954, which judgment concludes with the following provision:

“To which ruling of the court, defendant excepts and gives notice of appeal.”

It is further shown that on the same day that the judgment was entered appellant filed his motion for new trial which was thereafter amended on October 18, 1954, and overruled by the court on November 10, 1954. The order of the court overruling the amended motion for new trial contains the appellant’s exception thereto and notice of appeal.

The statement of facts found in the record was filed in the trial court on February 1, 1955, which was more than ninety days after the first notice of appeal was given.

Article 759a, Sec. 4, V.A.C.C.P., provides that the statement of facts shall be filed with the clerk of the trial court within ninety days after the date of giving of notice of appeal. It has been held by this court that where two notices of appeal appear in the record, the first notice shall control in determining whether or not the statement of facts is filed within the time required by law. Tarwater v. State, 160 Texas Cr. Rep. 59, 265 S.W. 2d 83; Stephens v. State, 161 Texas Cr. Rep. 70, 274 S.W. 2d 829.

The first notice of appeal appearing in the judgment dated September 28,1954, was a valid notice of appeal. Braun v. State, 158 Texas Cr. Rep. 394, 257 S.W. 2d 708. Such notice of appeal does not appear to have been withdrawn.

The statement of facts, not having been filed within the ninety days from the date of the first notice of appeal, cannot be considered.

In the absence of a statement of facts which can be considered, we are unable to pass upon the sufficiency of the evidence and the objections to the court’s charge.

The judgment is affirmed.

Opinion approved by the court.