Conviction is for murder. Punishment, eleven years in penitentiary.
The appeal must be dismissed. The caption to the transcript shows the court to have convened October 11th, 1920, and to have adjourned November 6th, 1920. The charge of the court bears heading "April Term A.D. 1921," and file mark of "April 15th, 1921." The verdict appears to have been received and judgment entered at the April term of court, 1921. The only bill of exception was not filed until August 6th, 1921, and the statement of facts likewise shows to have been filed on that date. It might be assumed that the case was tried at a term of court subsequent to that indicated by the caption, but if so the date of convening and adjourning thereof nowhere appears in such manner as may be considered. The necessity therefor is made manifest by our opinion in Nandosa v. State, 88 Tex.Crim. Rep., 225 S.W. Rep., 169 and Davis v. State, 88 Tex.Crim. Rep., 225 S.W. Rep., 532.
We would call attention, however, to the fact that an application was made for an extension of time in which to file statement of facts and bills of exception. A recital in the application is to the effect that court adjourned on May 7th, 1921. If the term of court at which appellant was tried did in fact adjourn on May 7th, 1921, and a corrected transcript should show this, then it appears that the statement of facts and bill of exception were not filed in the lower court until after the expiration of ninety days from adjournment. (See Romero v. State, 72 Tex.Crim. Rep., 160 S.W. Rep., 1193; Maxwell v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 324.)
For the reasons given the appeal is ordered dismissed.
Dismissed. *Page 117
ON MOTION FOR REHEARING. February 15, 1922.