TARWATER
v.
STATE.
No. 26824.
Court of Criminal Appeals of Texas.
February 24, 1954. Judgment Set Aside on Rehearing April 28, 1954.Harris E. Lofthus, Amarillo, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
Judgment Set Aside on Rehearing April 28, 1954. See 267 S.W.2d 410.
DAVIDSON, Commissioner.
This is a conviction for attempting to pass a forged instrument; the punishment, two years in the penitentiary.
As reflected by the record before us, a notice of appeal was given and filed when the motion for new trial was overruled on October 20, 1953; the record also reflects that ten days later (on October 30, 1953), a written notice of appeal was filed together with the trial court's order committing appellant to jail on failure to enter into a recognizance pending the decision of this court.
Under the provisions of Sec. 4 of Art. 759a, Vernon's Ann.C.C.P., the statement of facts must be filed within ninety days from the date of the notice of appeal.
The statement of facts in the instant case was filed in the trial court on January 25, 1954, which was seven days after expiration of the time allowed from the date of the original notice of appeal.
It is the holding of this court that the first notice of appeal shall control.
Inasmuch as the statement of facts was filed too late and may not be considered, the judgment is affirmed, as reversible error does not otherwise appear.
Opinion approved by the court.