Malek v. State

385 S.W.2d 389 (1965)

Leo Joseph MALEK, Appellant, v. The STATE of Texas, Appellee.

No. 37494.

Court of Criminal Appeals of Texas.

January 6, 1965.

C. Anthony Friloux, Jr., John E. Bobbitt, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is negligent homicide in the second degree; the punishment, a fine of $500.

Appellant's amended motion for new trial was overruled, and notice of appeal was given in open court, on April 17, 1964. The ninety days during which appellant was required to file the statement of facts, as required by Art. 759a, Sec. 4, Vernon's Ann.C.C.P., expired on July 17, 1964. No statement of facts was filed by appellant by such date.

On August 28, 1964, after expiration of the 90 day period, a thirty-day extension to the already expired ninety days allowed by statute for filing of the statement of facts was ordered. Subsequently, an additional order was entered on September 4, 1964, extending the time for filing the statement of facts to September 11, 1964. The statement of facts was filed in the trial court on September 11, 1964, but the trial judge has never approved the statement of facts in this case. We held in Jackson v. State, Tex.Cr.App., 344 S.W.2d 876, that the statement of facts, not approved by the trial judge, cannot be considered because it was not filed within 90 days after notice of appeal.

The action of the trial judge in extending the time for filing was not a nunc pro tunc action, as the record shows exactly when the time was extended. Thus, in the *390 absence of the trial judge's signing of the statement of facts, there is no applicable presumption of proper extension of the time for filing. Art. 759a, Sec. 4, V.A.C.C.P., supra. See also Hoskins v. State, Tex. Cr.App., 373 S.W.2d 248 and cases there cited.

The statement of facts is not properly before this court, and the claims of error in refusal of requested charges and the overruling of objections to the charge given cannot be appraised in the absence of a statement of facts.

Nothing being presented for review, the judgment of the trial court is affirmed.