ON MOTION FOR REHEARING.
HAWKINS, Judge.The state in a motion for rehearing says this court failed to pass upon the issue of diligence of appellant in pursuing his remedy to secure a statement of facts and refers us to Wood v. State, 67 Texas Crim. Rep., 609, 150 S. W., 194, in which it was said that although the trial judge may have made an order directing the court reporter to furnish an indigent defendant with a statement of facts, this court would not hold diligence sufficient unless the order was followed with mandamus proceeding against the reporter to compel compliance with the order. A similar intimation is found in Peddy v. State, 63 Texas Crim. Rep., 483, 140 S. W., 229. We note that in neither of the cases mentioned had the trial court entered an order directing the court reporter to furnish the statement of facts. Under the circumstances we would not regard the suggestions relating to mandamus proceeding as binding even under the statute then in force relative to statement of facts, and would not be inclined to follow it. Under the statute now controlling (article 760, subdivision 6, C. C. P.) we think our holding in Ex parte Fread, 83 Texas Crim. Rep., 465, 204 S. W., 113; Ballinger v. State, 110 Texas Crim. Rep., 148, 8 S. W. (2d) 159; Knox v. State, 22 S. W. (2d) 932; Banks v. State, 114 Texas Crim. Rep., 219, 21 S. W. (2d) 517, is correct. The case of Fuller v. State, 110 Texas Crim. Rep., 631, 10 S. W. (2d) 556, is called to our attention in the motion. Nothing in that case is contrary to what was said in our original opinion. In Fuller’s case the affidavit did not comply with the statute in that it omitted to state that accused could not give security to pay for the statement of facts. The record in that case also failed to show that the trial court ever entered an order on the affidavit.
The motion for rehearing is overruled.
Overruled.