Bryant v. State

OPINION

BELCHER, Commissioner.

The conviction is for felony theft; the punishment, three years.

Notice of appeal was given February 4, 1966.

The record brought forward on appeal is not in compliance with the requirements of Art. 40.09. It is not assembled under one cover and approved by the trial court. The transcript is certified only by the clerk. A separate statement of facts of the evidence adduced upon the trial is approved by counsel for the appellant and the state but is not approved by the trial judge.

After the statement of facts was filed in this court on June 2, 1966, the clerk of the trial court on June 7, 1966, issued a supplemental transcript which was filed in this court on June 8, 1966. It contained an order signed by the trial judge on June 3, 1966, referring to a transcript of the court reporter’s notes taken during the trial, and he approves and directs it to be filed in the record of the cause.

Although no grounds of error are properly presented by the appellant for review, his contention that this conviction cannot be sustained on the ground that the theft of money is not constituted by a loss of money by gambling, has been considered as unassigned error, under Art. 40.09, Sec. 13.

Where a card game is used with the intent to fraudulently take the possession of money and deprive the owner of its value and appropriate it, and the money is so appropriated, the evidence sufficiently shows the commission of the offense of theft. Art. 1413, V.A.P.C. In a card game with substantially the same facts as here, a conviction for theft was affirmed in McDonald v. State, 385 S.W.2d 253.

The judgment is affirmed.

Opinion approved by the Court.