Herrera v. State

HAWKINS, Judge.

— Conviction is for robbery, punishment assessed being seven years’ confinement in the penitentiary.

No statement of facts aceompaines the record. We find an affidavit of appellant’s attorney explaining that the absence of the statement of facts is no fault of his or appellant. The substance of the affidavit is that he requested the statement of facts and tendered the court reporter the fee therefor, and that said statement of facts was delivered to appellant’s attorney on the 17th day of August, 1936; that immediately upon receiving the same appellant’s counsel delivered it to the district attorney who has had possession thereof ever since; that no objection to the correctness of the statement of facts has ever been urged by the district attorney. Accompanying the affidavit of appellant’s counsel is the affidavit of the court reporter to the effect that immediately after the overruling of the motion for new trial appellant’s counsel requested a transcript of the testimony and tendered payment therefor and that the court reporter transcribed the testimony and delivered it to appellant’s attorney on August 17th, 1936, some twenty days before ninety days for filing same had expired; that the statement of facts was paid for by said attorney; that there has never been any dispute as to the correctness of said transcript prepared by said court reporter, and that she saw the statement of facts in the possession of said district attorney subsequent to the time she delivered it to appellant’s attorney. There is also an affidavit of the district attorney admitting that the statement of facts was delivered to him on the 17th day of August, 1936, but asserting that the district attorney had not had time in which to examine and approve same. This affidavit is dated December 14th, 1936, and it appears therefrom that the district attorney has had possession of the statement of facts prepared at the instance of counsel for appellant since the 17th of August, but is still claiming that he needs additional time to verify the correctness thereof. See Sec. 312, p. 450, Tex. Jur., Vol. 4, and authorities there cited.

It appears that appellant has been deprived of a statement of facts without fault on his part or his attorney, and this court has no option but to reverse and remand the case, which is accordingly so ordered.