Ong v. State

397 S.W.2d 234, 1965 Tex. Crim. App. LEXIS 1214

• Court: Court of Criminal Appeals of Texas
• Decided: November 24, 1965
• Docket: No. 38693
• Status: Published

Opinion

McDONALD, Presiding Judge.

The offense is driving while intoxicated, subsequent offense; the punishment, a fine of $1500.00 and two (2) years confinement in the county jail.

Although state’s counsel failed to point out the omission, we observe that the statement of facts accompanying this record bears the approving signature only of counsel for the state. Neither counsel for the appellant, the appellant himself, nor the trial court has approved the statement of facts.

Under Art. 759a, Vernon’s Ann. C.C.P., a statement of facts must be approved by the defendant or his counsel and the attorney representing the state, or the trial court. Hubert v. State, 164 Tex.Cr.R. 372, 299 S.W.2d 293; Donley v. State, 165 Tex.Cr.R. 650, 310 S.W.2d 567; Works v. State, 171 Tex.Cr.R. 3, 343 S.W.2d 706; Beale v. State, 171 Tex.Cr.R. 319, 350 S.W.2d 207.

Not having been approved as required by law, the statement of facts, here, is not subject to consideration by this court.

In the absence of a statement of facts, nothing is presented for review.

We observe that the judgment provides for two (2) years confinement in the county jail and a fine of $1500.00, while the sentence provides for confinement for two years in the state penitentiary. In order to comply with the terms of the judgment, the sentence is reformed so as to read, “James Croft Ong, II. shall be confined in said county jail for two (2) years and until such fine of $1500.00 is paid in accordance with the provision of law.” Art. 847, V.A. C.C.P.; Binder v. State, Tex.Cr.App., 253 S.W.2d 433.

As reformed, the judgment is affirmed.