Preston v. State , 111 Tex. Crim. 165 ( 1928 )

Conviction is for transporting intoxicating liquor, punishment being two years in the penitentiary.

Only one bill of exception appears in the record. It does not bear the approval of the trial judge; not being properly authenticated we cannot take cognizance of it. However, if it were approved neither it nor the statement of facts would be entitled to consideration because filed too late. The motion for new trial was overruled on the 25th day of February, 1928, and ninety days from that date allowed for filing statement of facts and bills of exception. The ninety days expired on the 25th day of May, 1928, on which date the learned trial judge undertook to grant a twenty days' further extension, reciting in his order that the statement of facts and bills of exception could not be filed within the ninety days because: "the stenographer who reported the testimony and other proceedings in the trial of such cause has not been able on account of other business, to prepare a transcript as required by law." The learned trial judge had no authority to extend the time beyond the ninety days as has frequently been held. We observe that the court reporter's certificate to the statement of facts is dated the 22d day of February, 1928, which indicates that he had done all he could towards preparing the record for appeal even before the motion for new trial was acted on, and that the delay in filing was not attributable to him. However that may be, if appellant desired to bring himself within the terms of Art. 2245 Rawle C. S., providing for the consideration, under certain contingencies, of a record filed after the time prescribed by law, it is necessary that he bring before the appellate court the facts upon which he relies to excuse the delay. This he has not done. The question was considered at some length upon motion for rehearing in Chisholm, et al. v. State, 1 S.W.2d 613, in which many authorities are collated.

The judgment is affirmed.

Affirmed.