*182Appellant was convicted under Art. 802c, V.A.P.C., of murder by accident and mistake while driving intoxicated and his punishment assessed at confinement in the penitentiary for 2 years.
The statement of facts appearing in the record is not shown to have been filed with the clerk of the trial court within 90 days after notice of appeal was given.
Art. 759a, Sec. 4, Vernon’s Ann. C.C.P., provides that a statement of facts shall be filed within 90 days after notice of appeal has been given. The statement of facts, not having been filed within the 90-day period provided by statute, cannot be considered. Tarwater v. State, 160 Texas Cr. Rep. 59, 265 S.W. 2d 83, 267 S.W. 2d 410; and Scales v. State, 272 S.W. 2d 118.
In the absence of a statement of facts which can be considered, we are not in position to pass upon the questions presented by appellant pertaining to the admissibility of and sufficiency of the evidence to support the conviction. Hankins v. State, 163 Texas Cr. Rep. 553, 294 S.W. 2d 850.
The indictment, as well as all other matters of procedure, appears regular; therefore, nothing is presented for review.
The judgment is affirmed.