After the original opinion affirming this case was handed down appellant made a motion for rehearing, and for a writ of certiorari to require the clerk to send up the statement of facts and other data which had not been filed herein when the original opinion was handed down. We granted the writ of certiorari and the clerk has now sent up and there has been filed herein the said papers. By them and the record in connection therewith it is shown that the term of court at which this conviction was had adjourned June 28, 1913. The court stenographer certifies that he was not called upon by appellant or his attorneys to prepare the statement of facts of the trial nor that heard on his motion for new trial until September, 1913, and that he at once on or about September 5, 1913, prepared both said statements of facts and delivered them to appellant's attorneys. The clerk shows that these papers were not handed to him for filing or other action until "some time in the month of September or October." And that *Page 109 upon inquiry of the district judge who tried the case he was told to put his file mark thereon, as filed July 1, 1913, which he did.
What purports to be this original statement of facts heard on the trial of the case is neither agreed to by the attorneys for either side; nor is it in any way approved by the court. What purports to be a statement of facts heard on the motion for new trial is signed by the district attorney for the State and approved by the district judge, but it is not signed nor agreed to by appellant or his attorneys. This, however, would make no difference as the approval of the judge might be sufficient.
In no event can this purported statement of facts heard on the motion for new trial be considered by this court. In the first place, as shown above, it was not delivered to the clerk for filing until some time in September or October, 1913. Even the file mark placed on it by the clerk, of July 1, 1913, was after the adjournment of the court. It is unquestionably settled in this State that in order to be considered at all by this court, such statement of facts heard on the motion for new trial must be filed during term time, and unless so filed this court can not consider it. Black v. State, 41 Tex.Crim. Rep., Reinhard v. State, 52 Tex.Crim. Rep.; Jarrett v. State,55 Tex. Crim. 550; Mikel v. State, 43 Tex.Crim. Rep.; Williams v. State, 56 Tex.Crim. Rep.; Probest v. State,60 Tex. Crim. 608; Tarleton v. State, 62 S.W. Rep., 748; Knight v. State, 64 Tex.Crim. Rep., 144 S.W. Rep., 967; Bailey v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 996. So that, as the record is presented to us, we can not review appellant's contention that a new trial should have been granted so that his claimed agreement with the district attorney that his sentence should be suspended could be enforced, even if the district attorney had power and authority to make any such agreement. The motion is overruled.
Overruled.