Pizzitola v. State

374 S.W.2d 446, 1963 Tex. Crim. App. LEXIS 821

Opinions

McDonald, judge.

Appellant was charged by separate complaint and information, with two misdemeanor offenses, and by agreement of the parties was tried before the court at one time. In Cause No. 36,107, the case under consideration at this time, he was convicted of aggravated assault, a misdemeanor, and assessed the punishment of 90 days confinement in jail.

The cause is before this court without a statement of facts of the evidence adduced on the trial, and consequently, the sufficiency of the evidence is not before this court.

There is no verified pleading to support proof of denial of counsel, and exception to overruling of an unverified motion for new trial cannot be considered on appeal even though the trial court heard evidence thereon. Thomas v. State, 166 Tex.Cr.R. 584, 316 S.W.2d 741; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878.

Appellant was represented by counsel, as a matter of record, from March 4, 1963, when his first amended motion for new trial signed by his attorney, was filed. This was 32 days before notice of appeal was given on April 5, 1963. A formal bill of exception could have been filed within 90 days from the date notice of appeal was given. Article 760d, Vernon’s Texas C.C.P.

This court is thus left with nothing to consider relative to the trial court’s denial of appellant’s motion for new trial.

Finding no reversible error, the judgment of the trial court is affirmed.