Appellant was convicted of aggravated assault and his punishment *Page 338 assessed at confinement in the county jail for thirty days.
The case was tried before the court without the intervention of a jury. The record is before this court without bills of exception. The State's brief points out that the statement of facts is filed too late, but suggests that even if it should be considered that it only shows a conflict in the testimony which was a question for the trial court to determine. It occurs to us that the State is correct in both particulars.
The amended motion for new trial was overruled on the 30th day of September, 1944, and the court adjourned for the term on that date. Thereafter, on the 28th day of October the court, on the application of appellant, extended the time in which to file the statement of facts and bills of exception for a period of thirty days. This extension expired on the 29th day of November, and no further extension was thereafter applied for. The statement of facts was not filed in the court below until the 15th day of December, 1944. Thus it will be noted that the statement of facts was not filed within the time required by Article 760 C. C. P., and, therefore, can not be considered. See Brewer v. State, 137 S.W.2d 21; Cadrin v. State,129 Tex. Crim. 525, 89 S.W.2d 1001.
The judgment is affirmed.
ON MOTION FOR REHEARING.