Baird v. State

ON appellant’s motion for rehearing

WOODLEY, Judge.

*592Appellant complains of the original opinion both because he construes its language as a reprimand of appellant’s counsel and as depriving him of the statutory right to 90 days’ time in which to file a statement of facts.

We disclaim any intent to reprimand counsel, but remain convinced that appellant is not entitled to a reversal of his conviction upon the ground that he was deprived of a statement of facts because he has not shown due diligence on the part of himself and his counsel to secure same. We also remain convinced that the statement of facts in the record which is neither agreed to by counsel for the state nor approved by the trial judge cannot be considered.

In asserting that the statute without qualification granted him 90 days after notice of appeal in which to file a statement of facts, appellant appears to have overlooked that portion of Art. 759a V.A.C.C.P. which provides: “If the parties cannot agree on a statement of facts within 75 days after giving of notice of appeal, the trial judge shall prepare and certify to a statement of facts.”

We call attention to the decisions of this court to the effect that the 90 days allowed for filing a statement of facts has no application to a statement of facts certified by the trial judge after the parties had been unable to agree. Widner v. State, 159 Tex. Cr. Rep. 256, 262 S.W. 2d 400; Therrell v. State, 161 Tex. Cr. Rep. 617, 279 S.W. 2d 879; Davis v. State, (page 22, this volume), 280 S.W. 2d 747.

Appellant’s motion for rehearing is overruled.