Smith v. State

379 S.W.2d 326, 1964 Tex. Crim. App. LEXIS 989

Opinions

McDonald, judge.

The offense is passing a forged instrument; the penalty, three years in the state penitentiary.

The record reflects that the trial was had on June 24, 1963, and a plea of nolo con-tendere entered. Notice of appeal was given in open court on the same date. The statement of facts included in the record was filed in the trial court on February 3, 1964, and thus was not filed within 90 days from the date notice of appeal was given as is required by Sec. 4, Art. 759a, Vernon’s Ann.C.C.P. Further, the statement of facts, while approved by the attorneys for the State and the defendant personally, was not approved by the trial judge. The transcript contains no request for an extension of the time for filing nor an order extending same.

As stated in Mobley v. State, Tex.Cr.App., 365 S.W.2d 173, a statement of facts not filed within ninety days after the date notice of appeal was given (1) or extension of said time by the trial court, and (2) not approved by the trial judge cannot be considered. Art. 759a, supra. In other cases we have considered statements of facts not so approved and filed, and have ordered reversals upon the grounds that an appellant has been deprived of a statement of facts, but only upon a satisfactory showing that the accused and his counsel have exercised diligence in the matter and that the failure to secure the proper approval and file the statement of facts in time has been due to no fault or negligence on their part. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223.

It is the duty of counsel for appellant to see that a statement of facts is properly filed in time and the accused is charged with the same duty. Salter v. State, Tex.Cr.App., 351 S.W.2d 885.

There is no showing that appellant or his counsel in the instant case has been deprived of a statement of facts which can be considered by this Court or that diligence has been used in an effort to secure a properly approved and timely filed statement of facts. Fleming v. State, 161 Tex.Cr.R. 519, 279 S.W.2d 340; Hagler v. State, 163 Tex.Cr.R. 63, 288 S.W.2d 789; Seales v. State, Tex.Cr.App., 311 S.W.2d 854.

In the absence of a statement of facts which may be considered, we cannot pass upon the question of the sufficiency of the evidence nor upon appellant’s informal bills included therein.

Appellant’s contention that the judgment and sentence were “prepared” before the trial commenced is not borne out by the record.

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