dissenting.
When, on August 7, 1957, the trial court heard and overruled the motion for new trial filed on July 9, 1957, which was seven days after the notice of appeal had been given upon the passage of sentence on July 2, 1957, and entered of record another — or second — notice of appeal, he automatically set aside the first notice of appeal. The last notice of appeal, therefore, became the notice of appeal in this case.
My views upon this matter are contained in my dissenting opinion in Heath v. State, 161 Texas Cr. Rep. 323, 276 S.W. 2d 534.
Appellant, here, was entitled to have his statement of facts considered. This conviction carrying a sentence of twenty years ought not to be affirmed without consideration being given thereto.
I dissent.
ON APPELLANT’S MOTION FOE REHEARING
BELCHER, Judge.Our opinion on appellant’s first motion for rehearing is withdrawn.
*397Except for the return of the verdict of the jury, the following occurred within the same term of court.
The jury returned its verdict June 29, 1957. The sentence was prouounced July 2, and notice of appeal was given on that date and entered of record. Motion for new trial was filed by appellant on July 9.
Though the trial judge declined to sign the order overruling the motion for new trial to which was appended a second notice of appeal, the instrument found its way into the minutes of the court.
It thus appears that there are two notices of appeal in the record, both given at the term of court during which the motion for new trial was overruled and sentence pronounced.
Under the authorities cited in our original opinion the statement of facts and bills of exception must be filed within 90 days after the date of the first notice of appeal. Therefore, the statement of facts or bills of exception, not having been filed within 90 days from July 2, 1957, cannot be considered. Stephens v. State, supra.
We need not rest our decision upon the late filing of the statement of facts, however, for there is none certified to contain all of the evidence adduced on the main trial. In fact what purports to be the last volume of the statement of facts was not filed in the trial court and bears no approval of the trial judge or agreement of counsel.
Appellant’s second motion for rehearing is overruled.
Opinion approved by the Court.