In its motion for rehearing, the state challenges our consideration of the statement of facts because it was not filed within ninety days after the date of giving notice of appeal, as required by Section 4 of Article 759a, Vernon's Ann.C.C.P.
While the statement of facts was not filed with the clerk of the trial court until the ninety-third day after the date notice of appeal was given, an examination of the same shows that it was agreed to by counsel for the state and the appellant on the ninety-second day, as evidenced by their signatures affixed thereto. Immediately following such agreement, there appears an order, signed by the trial judge, which reads: 'The Clerk of the Court is hereby ordered to file this record.'
It is apparent that the trial judge's order was signed after the statement of facts had been agreed to and signed by counsel for the state and the appellant and was an approval of the same after the ninety-day period had expired.
Under the provisions of Art. 759a, Sec. 4, supra, it is presumed that the time for filing was properly extended by the trial judge, and the statement of facts is entitled to be considered.
Richardson v. State, 170 Tex.Crim. R., 342 S.W.2d 313, cited by the state, is not here applicable, because in that case there was no agreement signed by counsel immediately above the judge's approval and signature. An examination of the record in the case reflects that the statement of facts contained a form for such an agreement, which was unsigned.
Remaining convinced that a proper disposition was made of the case in our opinion reversing the judgment of conviction, the state's motion for rehearing is overruled.
Opinion approved by the Court.