dissenting.
I regret that I must dissent in a case of this nature. I am fully committed to the proposition that every accused regardless of his financial condition should be accorded a full review of his conviction by this court. I am also committed to the proposition that an attorney should not secure the reversal of a conviction against his client by the very act of failing to properly look after his client’s interests.
None of the cases cited in the majority opinion are analagous to the case before us here, nor do they support the statement in the majority opinion that “the statute does not place it within the discretion of the trial judge to determine * * * whether there is remaining time within the ninety days from the date of giving notice of appeal within which to prepare the transcript of the evidence.” Let us see what happened in this case.
Appellant was represented by two attorneys of his own choosing and on December 15, 1956, was convicted in the trial court. On December 21, motion for new trial was filed, and the amendment of such motion was overruled on February 15, 1957, and notice of appeal was given. Shortly thereafter, the court reporter informed appellant’s attorney Harrison that the record in such case would require thirty days, day and night work, on his part to prepare. Thereafter, the reporter saw attorney Harrison often about the courthouse but heard nothing further from him about the case until May 6, 1957, at which time Harrison instructed him to proceed with the preparation of the statement of facts. The court reporter informed Harrison that only seven days remained and that it would be physically impossible for *617him to complete the statement of facts within the ninety days required by law.
On May 7, a pauper’s affidavit was presented to the trial judge. The court declined to order the reporter to proceed and recited the following three reasons for his ruling:
“1) That the defendant has failed to prove that he is without assets;
“2) That no proper diligence has been shown; and
“3) That Counsel of his own choosing had been advised that it would take 30 days in which to prepare the record in this case, and that it is physically impossible for the reporter to prepare a record in the seven remaining days of the ninety days allowed by the Court in its order of February 15, 1957.”
While it is true that the trial court fell into error in attempting to pass upon the merits of the pauper’s affidavit and therefore was in error in his reason No. 1, the real question before us is whether or not any of the reasons assigned were sound.
It should be remembered that it is uncontroverted in the record before us that it would have required the court reporter thirty days to prepare the statement of facts and that he advised appellant’s counsel of such fact in February but that appellant’s counsel made no request of the reporter until May 6 and made no effort to enlist the aid of the court until May 7.
The majority overlook the case of Freeman v. State, 135 Texas Cr. Rep. 50, 117 S.W. 2d 93. In that case, the affidavit was filed on the 85th day after the overruling of the motion for new trial. In the case at bar, it was filed on the 83rd day. In that case, as in this, it was physically impossible for the court reporter to prepare the statement of facts within the time prescribed by law. In the Freeman case, this court affirmed the conviction and said, “No reason is advanced for the failure of the appellant to file his affidavit within such time as to enable the court reporter to prepare and file the statement of facts within the 90 days required by law.”
If there appears a valid “reason” in the case at bar, the majority have not pointed it out in their opinion.
A reversal of this conviction because the accused has been *618deprived of a statement of facts will, I fear, place a premium upon lack of diligence and encourage all counsel to wait until the last hour before taking any positive steps toward securing a statement of facts and then ask this court to reverse the conviction because he has been deprived of what he made no serious effort to secure in the first place.
I respectfully dissent.