Le Marr v. State

308 S.W.2d 872, 165 Tex. Crim. 474, 1957 Tex. Crim. App. LEXIS 2389

• Court: Court of Criminal Appeals of Texas
• Decided: October 30, 1957
• Docket: 29204
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is murder; the punishment, 50 years.

The state has moved to strike the statement of facts on file in this court because the same was not filed in the trial court until the 104th day after notice of appeal and therefore filed too late for our consideration under Articles 759A, sec. 4, and 760d, V.A.C.C.P.

Appellant’s attorney, in answer to such motion, has furnished this court with an affidavit in which he states that the statement of facts was completed by the court reporter on or about May 24, 1957. He does not tell this court how he knew that the statement of facts was completed on that day nor does he state that he saw the same in its completed condition.

The pauper’s oath was filed on June 3, which was the 89th day. On June 4, the 90th day, the court ordered the reporter to prepare and furnish the statement of facts.

The court reporter has furnished this court with an affidavit in which she swears that the statement of facts was not completed on June 4 and could not have been completed on such date.

Since the appellant’s attorney’s affidavit does not inform this court how he knew the statement of facts was completed at an earlier date, we must accept the affidavit of the reporter that the same was not completed on June 4, which was the last day for filing the same.

We must hold that the appellant has not exercised due diligence when he waited until the 89th day to file his pauper’s oath and that the statement of facts was filed too late.

The judgment appearing regular and nothing being presented for review, the judgment is affirmed.