Mobley v. State , 1963 Tex. Crim. App. LEXIS 830 ( 1963 )

366 S.W.2d 558 (1963)

Donald Foster MOBLEY, Appellant,
v.
The STATE of Texas, Appellee.

No. 35314.

Court of Criminal Appeals of Texas.

April 3, 1963.

Thos. H. Dent, Galveston, for appellant.

Ted Schulz, County Atty., Richmond, and Leon B. Douglas, State's Atty., Austin for the State.

Opinion on Application for Leave to File Second Motion for Rehearing.

MORRISON, Judge.

Appellant urges that we were in error in not considering the statement of facts which was tendered. Under Article 759a, Vernon's Ann.C.C.P., a statement of facts may be considered when filed after the expiration of the 90 days provided only when the same is approved by the trial judge because the statute says that such approval shall be sufficient proof that the time for filing was properly extended.

We may not consider what purports to be a nunc pro tunc entry of an order overruling appellant's motion for new trial tendered in a supplemental transcript because the same was entered while the case was on appeal in this Court and the trial court was without any authority to enter any order during that time. Allen v. State, 124 Tex. Crim. 642, 65 S.W.2d 311, and Colbert v. State, Tex.Cr.App., 331 S.W.2d 328.

Application for permission to file second motion for rehearing is denied.