Birdsong v. State , 1966 Tex. Crim. App. LEXIS 812 ( 1966 )

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Counsel for appellant contend by brief that the statement of facts was in fact timely filed as of August 5, 1965, the last date for proper filing without the signature of the trial court, and that the file mark showing the date of filing as August 6, 1965, was defective due to an error on the appeals check list of the District Clerk.

Appended to appellant’s brief we find two instruments. The first, denominated “Appeal check list in felony convictions”, states in part:

“August 6, 1965 9. Date statement of facts filed.”

The second, a sworn affidavit of the District Clerk, states “ * * * I had noted upon the Appeal Check List that the date the Statement of Facts was due had been extended to August 6, 1965 thereby counting in error as said date should have been August 5, 1965.”

If we were to consider these instruments as properly before us, it is clear that the clerk was not in error in counting August 5, 1965, as the 45th day of the extension granted by the trial court.

Remaining convinced that a proper disposition was made originally, appellant’s motion for rehearing is overruled.