Davis v. State

ON MOTION FOR REHEARING.

WOODLEY, Judge.

The several bills of exception were filed in the trial court more than 30 days after the notice of appeal, and no order extending the time for their filing had been entered in the record when this case was before us on original submission.

It appears that the trial judge, at the time of overruling appellant’s motion for new trial, noted on his docket that 90 days was allowed for filing bills of exception, but such extension of Time was not shown in the blank space provided for such an extension in the order overruling appellant’s motion for new trial nor elsewhere in the minutes of the court.

It appears that since the original submission of this appeal, by order of the trial judge, there has been entered in the minutes of the court an order nunc pro tunc overruling appellant’s motion for new trial, containing his notice of appeal, and now containing an order of the trial judge granting 90 days to prepare and file his bills of exception.

The order extending the time for filing bills of exception must be entered of record, a notation on the docket granting additional time being insufficient. See Art. 760, Sec. 5, Vernon’s Ann. C.C.P.; Ayala v. State, 152 Tex. Cr. R. 416, 214 S.W. 2d 634.

And we are not permitted to consider the order entered nunc pro tunc, the trial judge having no authority to enter any such order while the case is pending in this court on appeal. See Murphy v. State, 133 Tex. Cr. R. 189, 109 S.W. 2d 488; Ayala v. State, supra.

We remain convinced that the appeal was properly disposed of on original submission.

Appellant’s motion for rehearing is overruled.

Opinion approved by the court.