Gonzales v. State

Conviction is for murder, punishment being fifteen years in the penitentiary.

Appellant's motion for new trial was overruled on July 13th and eighty days therefrom allowed in which to file statements of facts and bills of exception. This time expired on October 1st. On the 2d day of October the court undertook to make an order giving ten days additional time. The bills were filed on October 11th. The court was without authority to make the order for further extension after the expiration of the time embraced in the first extension order. Mireles v. State, 266 S.W. 418; Miller v. State, 267 S.W. 487; Chisholm v. State, 108 Tex. Crim. 401,1 S.W.2d 613; Frier v. State, 108 Tex.Crim. R.,1 S.W.2d 306. The state's contention that the bills of exception cannot be considered must be sustained. However, if the bills could be considered it would be impossible to appraise them in the absence of a statement of facts. We find in the record an affidavit of appellant that he is too poor to pay the costs and is unable to secure them, and praying that the court reporter furnish him a record of the evidence. This affidavit bears the file mark of the clerk, but there is no showing that it was ever called to the attention of the trial judge, or that he ever made, or declined to make, an order regarding the matter. Art. 760, Subdivision 6, C. C. P., Fuller v. State, 98 Tex.Crim. R., 264 S.W. 953.

The judgment is affirmed.

Affirmed.