Opinion
No. 38061.
April 14, 1965. Rehearing Denied June 16, 1965. Second Rehearing Denied October 13, 1965.
Appeal from 33rd Judicial District Court, San Saba County, Jack B. Miller, J.
Mithcell Gilbert (on rehearing only), Sam French (on rehearing only), Austin, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder with malice; the punishment, ten years.
The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular and nothing is presented for review. The judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING
Since the rendition of our original opinion herein on April 14, 1965, appellant has tendered a statement of facts approved by the trial judge on May 5, 1965, and filed with the clerk of the trial court on May 19, 1965. The order of the trial judge recites the following:
"I have read the foregoing Statement of Facts and it is a correct statement of the evidence adduced at the trial. I do not approve this statement of facts within the meaning of Section 4 of Article 759a of the Code of Criminal Procedure because it is offered for filing more than 90 days after notice of appeal. No request for an extension of time for the filing of such statement of facts was made to me either before or after the 90 day period elapsed and I have never granted an extension in time.
Signed this 5th day of May 1965.'
The certificate of the trial judge puts his approval beyond the terms of Section 4 of Art. 759a, Vernon's Ann.C.C.P., after the expiration of 90 days.
Were the statement of facts properly approved by the trial judge within the terms of Section 4 of Art. 759a, V.A.C.C.P., this Court still is precluded from considering same in view of our holdings in Selvidge v. State, 171 Tex.Crim. R., 345 S.W.2d 523; Hill v. State, Tex.Cr.App., 375 S.W.2d 306, 307, and McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.
The motion for rehearing is overruled.
Opinion approved by the Court.