Opinion
No. 17565.
Delivered May 8, 1935.
1. — Appeal Bond — Rule Stated.
Appeal from conviction for misdemeanor will not be dismissed for failure of the record to show affirmatively that the trial judge fixed amount of defendant's appeal bond, under which defendant was enlarged, usual presumption of regularity being indulged.
2. — Statement of Facts — Bills of Exception.
Where the record on appeal contains no statement of facts or bills of exception no question is presented for review.
Appeal from County Court at Law No. 1, of Tarrant County. Tried before the Hon. David McGee, Judge.
Appeal from conviction for misdemeanor theft; penalty, confinement in county jail for two years.
Judgment affirmed.
The opinion states the case.
Frank L. Bender, of Fort Worth, for appellant.
Will R. Parker, Criminal District Attorney, and Cecil C. Rotsch and Homer B. Green, Assistant Criminal District Attorneys, all of Fort Worth, and Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is misdemeanor theft; the punishment, confinement in the county jail for two years.
The State has filed a motion to dismiss the appeal on the ground that the record fails to affirmatively show that the judge trying the case fixed the amount of the appeal bond. It is not affirmatively shown in the record that the amount of the bond under which appellant is enlarged was not fixed by the trial court. The state relies on Hardaman v. State, 273 S.W. 584, which was expressly overruled in Wooten v. State, 4 S.W.2d 563. We quote from the opinion in the case last mentioned as follows: "While the statute requires that the amount of such bond be fixed by the court below, we are of opinion that in the absence of some affirmative showing in the record that the amount of such bond had not been fixed by such court, we would indulge the usual presumption of regularity. Such appears to be the effect of the holding in the Turpin Case, supra. The Wiseman Case, 70 Tex.Crim. Rep., 156 S.W. 683, which is discussed and cited as authority in the opinion in the Turpin Case, as well as the authorities cited in said Wiseman opinion, seem in accord with the conclusion now announced. We are of opinion that the case of Hardaman v. State, supra, announces an incorrect conclusion, the same will be overruled."
Under the foregoing announcement, the State's contention cannot be sustained.
The record is before us without a statement of facts or bills of exception. No question is presented for review.
The State's motion to dismiss the appeal is overruled, and the judgment is affirmed.
Affirmed.
MORROW, P. J., absent.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.