Luna v. State , 1964 Tex. Crim. App. LEXIS 1197 ( 1964 )

BELCHER, Commissioner.

The appellants were convicted upon a joint trial for assault with intent to murder; and the punishment for each was assessed at seven years.

The statement of facts and an instrument which is referred to in appellant’s brief as an appendix to the statement of facts are contained in the record, but they were not filed with the clerk of the trial court as required by Art. 759a, Sec. 4, Vernon’s Ann.C.C.P. Therefore they cannot be considered. Salyer v. State, 166 Tex.Cr.R. 532, 316 S.W.2d 420.

No formal bills are contained in the record.

The judgment is affirmed.

Opinion approved by the Court-

On Appellants’ Motion for Rehearing

MORRISON, Judge.

Subsequent to the rendition of our original opinion herein the clerk of the trial court executed a certificate in which she states that an instrument entitled Oral Discussion Concerning Motion for Continuance was actually filed by her, though it in fact bears no such file mark.

Under the decision of this Court such certificate cannot be considered as it comes too late. Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37; Hill v. State, Tex.Cr.App., 375 S.W.2d 306; and Ex Parte Seffens, Tex.Cr.App., 376 S.W.2d 348.

Appellants’ motion for rehearing is overruled.