Ex parte Ambrose

ON MOTION FOR REHEARING.

DAVIDSON, Judge.

Appellant, by affidavit of his attorney, seeks to excuse his failure to file a statement of facts in this case, by saying that he filed an affidavit of inability to pay for a transcript of the testimony, and that the court reporter failed to furnish a statement of facts.

*584There is no allegation in the affidavit of appellant’s counsel, nor does it otherwise appear from the record before us, that the affidavit or inability to pay for a transcript of the testimony was presented to the trial judge, or that an order was made by the trial judge directing the court reporter to prepare, and to furnish the appellant, a transcript of the testimony.

.In order for an accused to avail himself of the fight to have the court reporter prepare a transcript of the testimony because of his inability to pay therefor, it is necessary not only that the affidavit comply with the statute but that it be called to the attention of the trial court, and the record must so reflect. Fulton v. State, 101 S. W. (2d) 251, and authorities there cited.

The appellant’s motion for rehearing is overruled.

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.