Wilson v. State

LATTIMORE, J.

Averring that our opinion overruling his motion for rehearing is in direct conflict with what we said in Evans v. State, 84 Tex. Cr. R. 577, 209 S. W. 147, appellant seeks leave to file a second motion for rehearing. We think the opinions not necessarily in conflict. The statute governing the filing of statement of facts in misdemean- or cases, quoted in our opinion herein, made it obligatory on appellant, as a condition precedent to the requirement that the trial judge himself prepare a statement of facts in a misdemeanor case, that he or his attorney not only must present to such judge, within the time allowed for filing same, a statement of the facts in the ease, but such statement of facts must also be accompanied by the certificate of the appellant or his said attorney stating that to the best of his knowledge and belief same is a full and fair statement of all the facts proved on the trial. This is manifestly intended for the aid, guidance, and assistance of the trial judge in the preparation of a statement of facts'in such case. While appellant’s attorney now makes oath herein that he did present a statement of facts to the county, judge, he does not claim nor show that if he tendered any such statement of facts same contained the certificate legally made necessary in such case. Whether this requirement was complied with in Evans v. State, supra, we can only conjecture from the statement in the opinion therein that “Efforts were made by counsel to have the evidence properly filed, but without success.” We regret that we cannot give appellant the leave asked, nor grant his motion on the ground set up.

The application is denied.