Opinion
No. 38052.
March 31, 1965. Rehearing Denied May 19, 1965.
Appeal from Criminal District Court No. 5, Harris County, Sam W. Davis, J.
No attorney of record on appeal for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and J. R. Mussle-white, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is assault with intent to rob as denounced by Article 1163, Vernon's Ann.P.C., with one prior non-capital felony alleged for enhancement; the punishment, 10 years.
The statement of facts found in the record bears the approval of counsel for the appellant and for the State, but is not approved by the trial judge. The statement of facts, not approved by the trial judge, cannot be considered, because it was not filed within ninety days after the date notice of appeal was given as required by Section 4 of Article 759a, Vernon's Ann.C.C.P. Smith v. State, Tex.Cr.App., 379 S.W.2d 326; Mobley v. State, Tex.Cr.App., 365 S.W.2d 173; Jackson v. State, Tex.Cr.App., 344 S.W.2d 876. See also Diggs v. State, 64 Tex.Crim. R., 141 S.W. 100.
The action of the trial judge in extending the time for filing the statement of facts was not a nunc pro tunc action and does not operate as a proper extension. Malek v. State, Tex.Cr.App., 385 S.W.2d 389.
In the absence of a statement of facts which may be considered, we cannot pass upon the question of the sufficiency of the evidence. Mobley v. State, supra.
There are no formal bills of exception; the proceedings appear to be regular, and the judgement is affirmed.