Ayala v. State , 152 Tex. Crim. 416 ( 1948 )

Appellant requests leave to file second motion for rehearing and asks this court to (1) withhold the issuance of mandate of affirmance in order that appellant may obtain a judgment nunc pro tunc from the trial court granting 90 days within which to file bills of exception; and (2) that his bills of exception now on file be considered.

On his first request we point out that the trial court would have no authority to enter a judgment nunc pro tunc as long as the case was pending in this court on appeal. When notice of appeal was given the trial court lost jurisdiction to do anything further than is authorized in Art. 828 Cow. C. P., which does not include the thing requested by appellant. Many authorities will be found in the notes under the article mentioned in Vernon's Ann. Texas Criminal Statutes, Vol. 3, C. C. P. The following cases are directly in point. Murphy v. State, 133 Tex.Crim. R., 109 S.W.2d 488; Davis v. State, 120 Tex.Crim. R., 28 S.W.2d 794; Acuff v. State,98 Tex. Crim. 71, 262 S.W. 761; Allen v. State, 124 Tex.Crim. R.,65 S.W.2d 311.

The original opinion delivered June 16, 1948, points out clearly the reasons why appellant's bills of exception may not be considered. The authorities cited by appellant in his request that we consider his second motion for rehearing have been examined, but are not thought to bring this case within the holding in those cases.

The request for leave to file second motion for rehearing is denied.