Ex Parte Hooper

312 S.W.2d 673, 166 Tex. Crim. 189, 1958 Tex. Crim. App. LEXIS 4557

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1958
• Docket: 29689
• Status: Published

Opinions

DAVIDSON, Judge.

By writ of habeas corpus, appellants sought to be discharged from arrest and custody in an extradition case. From the order denying that relief notice of appeal was entered on the 16th day of January, 1958.

There is no statement of facts before us.

The order of the trial court certifies that evidence was heard which included the introduction of the supporting papers forwarded by the Governor of the demanding state, to which the appellants, through their counsel, made various objections as also to the sufficiency to authorize extradition.

On April 15, 1958, which was one day prior to the expiration of the ninety-day period for filing the statement of facts, Appellants’ Bill of Exception No. 1 was approved and duly filed on the same day.

In that bill of exception the trial court certified the following: (1) that the appellants in due time and manner and with due diligence requested a statement of facts from the court reporter; (2) that the court reporter was unable to prepare the statement of facts because the exhibits offered in evidence could not be located, notwithstanding diligent search had been made therefor; (3) that appellants and their counsel were first notified, on April 14, 1958 — which was two days prior to the expiration of the ninety-day period for filing a statement of facts — of the absence of such exhibits and of the inability of the court reporter to prepare the statement of facts; (4) that the unavailability of such exhibits for inclusion in the statement of facts was not caused by nor due to any lack of diligence on the part of the appellant and their counsel; and (5) that the missing exhibits consisted of numerous instruments and neither the court nor counsel for the appellants and that for the state had sufficient memory of the contents thereof to be able to agree or stipulate or certify with accuracy as to their content and wording.

The bill of exception certifying such facts was approved without qualification.

It is apparent, therefore, that the appellants, without fault, negligence, or laches on their part or on the part of their counsel, have been deprived of a statement of facts in this case.

This requires a reversal of the order of the trial court denying the relief prayed for.

Accordingly, the judgment is reversed and the cause is remanded.