The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.
No statement of facts is found in the record. It appears from an affidavit filed by appellant's counsel that on the day appellant was convicted he requested the court reporter to prepare a statement of facts; that he also wrote two letters to the reporter within the time for filing the statement of facts, requesting him to prepare said instrument; that within a few days before the time for filing he requested the court to require the reporter to prepare a statement of facts; that he did not receive the statement of facts until after the time for filing had expired; that he did not prepare any bills of exception, inasmuch as said bills could not have been considered without the statement of facts. The affidavit of the court reporter is to the effect that he mailed the statement of facts to appellant's counsel on the 12th day of September, 1930, which was approximately five days before the time for filing had expired; that the court approved said statement of facts before he mailed it to appellant's counsel. It appears that appellant gave notice of appeal on June 17, 1930. The court granted him 90 days within which to prepare and file statement of facts and bills of exception. The affidavit of the district judge is to the effect that the statement of facts was mailed to appellant's counsel approximately a week before the time for filing expired.
It is observed that appellant's affidavit fails to state the date the statement of facts was received by him. The averment that *Page 163 said statement was not received in time for filing is a conclusion. The statement of facts was not filed after it had been received. Considering the affidavit of appellant's counsel and the controverting affidavits, we are unable to reach the conclusion that appellant is entitled to reversal on the ground that he has been deprived of a statement of facts.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.