Knox v. State , 113 Tex. Crim. 373 ( 1929 )

The offense is robbery by the use of firearms; the punishment confinement in the penitentiary for life.

Many bills of exception are brought forward. However, due to the fact that no statement of facts is on file in this court, we are unable to appraise said bills.

It appears that appellant has been deprived of a statement of facts, without fault or neglect on the part of either himself or his counsel. Immediately after giving notice of appeal and receiving sentence appellant filed an affidavit to the effect that he was unable to pay for a transcript of the testimony or give security therefor. The trial court promptly entered an order directing the court reporter to prepare and deliver to appellant a complete transcript of all of the testimony. The matter being called to the attention of the reporter, he prepared a transcript of his notes in question and answer form, which he delivered to appellant. Whereupon appellant filed a written motion with the court calling attention to the fact that he had not been furnished a narrative statement of facts, and praying the court to require the court reporter to prepare and furnish him such statement. This motion was filed several days before the expiration of the time for filing the statement of facts. The court overruled the motion.

Under the terms of Art. 760, C. C. P., when any felony case is appealed and the appellant is not able to pay for a transcript of the testimony or give security therefor, and makes affidavit of such fact, it is incumbent upon the trial court to order the official court reporter to make a narrative statement of facts and deliver it to the appellant. The provisions of this article are mandatory. The trial court failed at any time to order the court reporter to make and deliver a narrative statement of facts to appellant. The most that was done was to direct the court reporter to deliver to appellant a transcript of the testimony. In this state of the record, we are constrained to hold that appellant, without neglect or fault on his part or the part of his counsel, has been deprived of a statement of facts. Hence it becomes our duty to order a reversal. Ballinger v. State,8 S.W.2d 159; Gilley v. State, 13 S.W.2d 706; Banks v. State, opinion No. 13036, decided Nov. 6, 1929.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.