
    John L. Sherman v. State
    No. 29,089.
    June 5, 1957.
    
      No attorney for appellant of record on appeal.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

There appears in the transcript what purports to be a copy of the statement of facts on file in the cause.

Art. 760 (2) Vernon’s Ann. C.C.P., provides that the statement of facts shall not be copied in the transcript but shall be filed in duplicate with the clerk and the original sent up as a part of the cause on appeal.

The instrument being copied in the transcript and not being the original statement of facts bearing the approval of the trial judge or that of counsel for the state and the accused cannot be considered. Art. 759a, V.A.C.C.P.; Art. 760, supra; Brewster v. State, 154 Texas Cr. Rep. 177, 226 S.W. 2d 124 and McDaniel v. State, 156 Texas Cr. Rep. 126, 239 S.W. 2d 630.

In the absence of a statement of facts which can be considered we cannot appraise appellant’s exception to the court’s action in refusing his requested instruction to the jury.

If in fact the original statement of facts was timely approved and filed, it may be forwarded to this court and appellant may file a motion for rehearing if he so desires. However, our examination of the copy has revealed that there was sufficient evidence to sustain the conviction and we observe no reversible error.

The judgment is affirmed.

Opinion approved by the Court.  