Murray v. State , 116 Tex. Crim. 178 ( 1930 )

Driving an automobile while intoxicated is the offense; penalty, confinement in the county jail for a period of ninety days.

The record contains both an original and supplemental transcript. In the original transcript there are no bills of exception. The evidence, as shown by the statement of facts, is sufficient to support the verdict. The recognizance was made March 1, 1930. The original transcript reached this court on April 15th. The supplemental transcript arrived May 23, 1930. The motion for new trial was overruled March 1st and notice of appeal given. The order, however, contains no extension of the time within which to file the bills of exception or statement of facts. As shown by the supplemental transcript there was filed in the trial court on the 17th day of May a motion to enter an order nunc pro tunc. It is averred that at the time his original motion for new trial was overruled and notice of appeal given, a request was made by the appellant and granted by the court to extend the time for filing the statement of facts and bills of exception until eighty days after the adjournment of court; that the order was by inadvertence omitted; that counsel for the appellant had the assurance of the district judge and the district clerk that the order extending the time above mentioned would be duly entered and carried forward into the minute book which was in possession of the clerk, which contained the forms for the entry of such orders, the form requiring only the filling in of blank spaces; that acting upon the assurance of the clerk and the judge, counsel took no further notice of the matter and did not know of the omission until he presented his statement of facts for approval, which was on the 17th day of May, about twelve days after the adjournment of court.

On the hearing of the motion mentioned on the 19th day of May, 1930, the attorney for the appellant, the district clerk and the district judge each gave testimony. After hearing the evidence the court entered an order overruling the motion to which the appellant excepted and gave notice of appeal to this court. Many years ago the statute, Art. 884, C. C. P., (now Art. 828), was construed by this court to preclude the trial court from entering an order nunc pro tunc correcting the record in a criminal case after the jurisdiction of this court was attached. This court, in the case of Turner v. State, 16 Tex. Ct. App. 318 (decided in 1884) expressed the view that the soundness of the interpretation of the statute was open to question but if not correct the statute should be amended by the Legislature. The court, in the case mentioned, felt unauthorized to change the construction, which has been followed ever since in many cases which are collated in Acuff v, State, 262 S.W. 761. By the precedents mentioned this court deems itself controlled. We will add, however, that the conflicting nature of the evidence heard upon the hearing of the motion to enter the judgment nunc pro tunc would in any event preclude this court from overturning the ruling of the court in refusing to enter the order nunc pro tunc.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.