Chavez v. State

Appellant, in his motion for a rehearing, claims that we erred in our original opinion in declining to consider his bill of exceptions relating to the court's action in overruling his application for a continuance. The reason we did not discuss the matter sought to be brought forward by his bill of exceptions is that the bill is deficient. The application for a continuance is not incorporated in the bill nor referred to and made a part thereof. It merely recites that he presented his application for a continuance, sets out the evidence introduced to show diligence and the court's action in overruling the same, to which he excepted. It is the holding of this court that bills of exception relating to the action of the court in declining to grant an application for a continuance must set out the application. The bill in this instance fails to meet such requirement. See 4 Tex. Jur. p. 365, sec. 246; Pena v. State, 1 S.W.2d 1095; Lucera v. State, 1 S.W.2d 633; Wheeler v. State, 118 Tex.Crim. R..

We have again reviewed the other bills of exception, but remain of the opinion that a proper disposition was made of them in the original opinion.

The motion for rehearing is overruled.

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.