Lynch v. State , 150 Tex. Crim. 148 ( 1946 )

Appellant was convicted by a jury of misdemeanor theft over the value of $5.00 and under $50.00, and awarded a penalty of four years in jail under a habitual criminal allegation of a prior conviction.

The statement of facts filed herein seems to have been agreed to by the attorneys for the State as well as those of appellant, but is not signed nor approved by the County Judge trying such case; no approval thereof being shown. Under the statute, Art. 760, Vernon's Ann. Tex. C. C. P., it is necessary that such statement be approved and signed by the judge trying the case. See Barnes v. State, 102 Tex.Crim. R.,277 S.W. 128; Burns v. State, 105 Tex.Crim. Rep.; 288 S.W. 1087; Epple v. State, 109 Tex.Crim. R., 2 S.W.2d 438; Vernon's Ann. Tex. C. C. P., (Pocket Part, 1946), Art. 760, note 24.

Appellant also offers five bills of exception in which he alleges error was committed by the trial court. An examination of the record shows that this cause was tried and verdict rendered on April 30, 1946; that a motion for a new trial was heard and by the court overruled on May 4, 1946; that on that day notice of appeal was given and the trial court, after hearing same, overruled the motion and entered the notice of appeal in the record, which notice contains the following:

"Defendant is granted 50 days within which to prepare and file Statement of Facts and Bills of Exception herein."

Thereafter, on June 28, 1946, appellant filed a motion in writing requesting the trial judge to grant an extension of 30 days in which he might prepare and file his bills of exception, herein, which request was granted. It will be noticed that 54 days had passed since the trial court har granted appellant 50 days in which to prepare and file his bills of exception, and because of the fact that such order extending the time for filing bills of exception was entered after the 50 days originally granted by the court, the trial judge was without power to grant an extension of the first order. In other words, in order for an extension of time to be granted, such extension should be granted prior to the expiration of the original order. See Vernon's Ann. Tex. C. C. P., Art. 760, note 44 (Pocket Part, 1946) for many cases. Therefore, we cannot consider the bills of exception, all of which were filed on July 27, 1946, long after the 50 days were granted.

Being unable to consider either the statement of facts or the bills of exception herein presented, we have examined the remaining portion of the record and find no error shown therein.

The judgment is accordingly affirmed.

ON APPELLANT'S MOTION FOR REHEARING.