Parker v. State , 124 Tex. Crim. 600 ( 1933 )

Because no sufficient notice of appeal was brought up with the transcript, the appeal was dismissed on April 9, 1933. It appeared upon the original hearing that notice of appeal had been given and transcribed in the memorandum of the judge's trial docket, but not carried into the minutes. Notice of appeal having been carried into the minutes in a proceeding nunc pro tunc by a proper procedure, this court now has jurisdiction of the appeal. By agreement, the original transcript is to be supplemented by an additional transcript showing notice of appeal which is to be given consideration.

It appears that the term of court at which the trial took place adjourned on November 5, 1932. The motion for new trial was overruled on September 28, 1932, and notice of appeal given upon the same day. The statement of facts before this court was filed in the court below on December 29, 1932, and the bills of exception were filed upon the same day. By statute, article 760, subd. 5, C. C. P., 1925, this court is precluded from considering a statement of facts and bills of exception filed at a time exceeding ninety days from the date notice of appeal was given and the overruling of the motion for new trial. Recognition of the binding force of this rule upon this court has been affirmed many times. See Vernon's Ann. Tex., C. C. P., 1925, vol. 3, p. 115; Hill v. State, 92 Tex.Crim. Rep.; Woolridge v. State, 91 Tex.Crim. Rep.. See, also, 1932 Cumulative Annual Pocket Supplement, to Vernon's Ann. C. C. P., vol. 3, p. 24, in which many decisions are collated affirming the binding force of the rule upon the litigants and this court. That is to say, the consideration of a statement of facts filed more than ninety days after motion for new trial is overruled is forbidden by the statute in the absence of some special circumstance set up and proved which would make an exception to the rule. See McCall v. State, 113 Tex. Crim. 62; Hopson v. State, 113 Tex.Crim. Rep.; Wiggs v. State, 36 S.W.2d 765; Luttrell v. State, 48 S.W.2d 268; Kinard v. State, 56 S.W.2d 873; O'Burke v. State, 58 S.W.2d 111. With equal force, the statute forbids the consideration of the bills of exception. This is illustrated by the precedents cited. For the reasons stated, the statement of facts cannot be considered.

There are two bills of exception in the record, both of which were filed too late to warrant consideration.

The indictment appears regular and properly presented. No matters have been brought to our attention or perceived which would authorize an annulment of the judgment in the absence of the statement of facts and bills of exception, the contents of which, as above stated, are not available to the court.

For the reasons stated, we are constrained to reinstate the appeal, to recall the mandate previously issued, and to order an affirmance of the judgment, which is accordingly done.

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.