
    WRIGHT v. STATE.
    (No. 3841.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.
    Rehearing Denied March 8, 1916.)
    1. Criminal Law <§=>1144— Appeal — Presumption.
    It will on appeal be presumed that the action of the trial court was correct unless it appears' to the contrary by the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. <§=>1144.]
    2. Criminal Law <§=>1099 — Appeal—Statement op Facts.
    On stated facts, held that accused, who was convicted on a plea of guilty, entered when he was unable to obtain counsel to represent him, did not show sufficient diligence in obtaining a statement of facts; hence denial of motion for new trial will not be reviewed on affidavits.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    J. R. Wright was convicted of crime, and he appeals.
    Affirmed.
    McOutcheon & Church, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was given two years in the county jail on a plea of guilty, and a waiver of jury, the case being tried by criminal district court No. 2 of Dallas county.

There are no bills of exception and no statement of facts in the record. The attorney for appellant files affidavit, setting up strong grounds why he, appellant, should have been awarded a new trial, and why a refusal to do so would authorize a'reversal of the judgment. This affidavit is met by the affidavit of the district judge, the assistant county attorney, the stenographer, and clerk of the court, which sharply contravenes the affidavit of counsel for appellant. These contradictions are of such a nature this court would not feel justified in reversing. On appeal this court will presume the correctness of the decision of the trial judge. This is the legal presumption. The party who attacks the ruling of the trial court must show that error was committed. In other words, legal presumption of the correctness on the part of the trial court must be properly and legitimately overcome in order to require a reversal. The affidavit of counsel for appellant is rather lengthy, the s.ub-stance of which is that at the time this case was called for trial in criminal district court No. 2 he was in the prosecution of a felony in criminal district court No. 1. The judge of criminal district court No. 2 sent for counsel, and advised him of the situation. The attorney’s statement is to the effect that he asked for a postponement of the ease until he could finish the trial in the other court, which was refused by the judge who tried this case, and appellant was required to go to trial. Counsel who makes the affidavit was in partnership with another attorney, who did not appear in the case. The affidavit further shows that he sought to employ Mr. Baskett, another member of the bar, to take his place by tendering him his fee. This was declined by Mr. Baskett, and appellant was then permitted to go with an officer in quest of an attorney to represent him. After being absent for half an hour or more, he returned and reported his failure to find an attorney, whereupon he pleaded guilty. It is shown that testimony was introduced as to the facts under the plea of guilty, with the result that the court gave him two years’ imprisonment in the county jail, and on the last day of the term motion for a new trial was overruled. Facts were introduced on this motion. It seems from the affidavit it took a wide range, and covered, not only the trial of the motion, but the facts of the case as well; at least that seems to be a proper conclusion from the affidavit. Court adjourned so shortly afterwards appellant’s counsel did not have time to obtain a statement of the facts, either on the trial or on motion for new trial. A stenographer did not take down the testimony on the original trial, but did on the new trial. Mr. McCutcheon further states he was unable to get the statement of facts, and was therefore deprived of a hearing in this court on his appeal. It may also be stated an order was entered in the minutes of the court, granting him time, for the reason that as the term was at its close the statement of facts could not be gotten up before adjournment, the court stating he would see that appellant lost nothing of his rights by reason of that fact. He asked the stenographer to make out a statement of the facts as quick as possible, so as to show no delay. This was on Saturday. On Monday he says he called on the stenographer, and found he was absent in attendance upon the Court of Criminal Appeals as a witness in a case pending in that court. Upon his return the stenographer made out a statement of facts, which was never approved by the county attorney, and after a long delay he failed to get a statement of facts; that he was unable to get a statement of facts on the merits of the case because of want of stenographer, and he was unable to produce it, and the county attorney who tried the case did not make out one. This is in substance the affidavit of counsel for appellant.

The district judge filed an affidavit, stating that he sent for counsel when the case was called for trial, and that his partner, Mr. Church, was in the courtroom at the time; that he informed him of the situation, and counsel withdrew from the case; that Mr. Baskett was in the courtroom and refused to take the case, and Mr. Church, his partner, also refused to have anything to do with it, assigning reasons unnecessary to state; and that he gave appellant time to secure an attorney, but, after looking around for a while, he failed to obtain the service of counsel, and came back and announced he would plead guilty. In this connection it might be stated it is also shown in appellant’s counsel’s affidavit that appellant had been addicted to absinthe drinking, and at the time of the trial was under its influence. The district judge states at the time of the trial appellant appeared to be duly sober, and gave no evidence of being under the influence of any whisky or drug, and seemed to be normal every way. He states that counsel for appellant drew up the order at his (the district judge’s) request that went into the minutes, authorizing the subsequent filing of a statement of facts, stating as the reason the shortness of the term prevented their being filed before it did adjourn. This, of course, was in reference to the evidence introduced on the motion for new trial. The time allowed by him would apply anyway to the facts introduced on the merits of the case. The district judge states the statement of facts was not presented to him by counsel, and he knew nothing of it until subsequently; that his attention was called on the street to the fact that the statement of facts had been on the clerk’s desk for some time, and. he immediately went to the courtroom and read the statement of facts and approved same; that appellant’s counsel never did present him any statement of facts. The clerk filed an affidavit, substantially, that some time after the statement of facts was made up by the stenographer, counsel brought the statement of facts to him and left it with him, and it remained there on his desk for some time until the judge signed same, and that counsel did not file the statement of facts, but took it away, and it has not been returned to him, and therefore has never been filed. The county attorney states he knew nothing about it until one day counsel passed his office door and called his attention to the fact that the statement of facts was on the clerk’s desk, or something of that nature, and that the statement of facts was never presented to him otherwise. The stenographer testifies, within four or five days after court adjourned, he furnished counsel with a statement of the facts, and had received $10 of the $12.50 due for the work. The court at which the conviction occurred adjourned on the 2d day of October. The transcript was certified by the clerk on the 25th day of October. While we have not gone fully into detail, for these affidavits are rather voluminous, this is a substantial statement of the merits of the affidavit and counter affidavits.

In this manner the record is presented to us, and we are of opinion that the showing of diligence on the part of appellant is not sufficient. If appellant had been diligent in the matter and failed to get a statement of facts, we would have a different question, but where the issue is placed as these affidavits place it, in view of the general presumption that the action of the court must be shown to be illegal and incorrect when an attack is made upon it, this showing is not sufficient. If appellant had even filed a statement of facts when he did get the approval of the judge, showing an excuse why this was not done earlier, the showing would be more equitable. This was not done, nor was the statement of facts filed in the trial court, nor tendered to this court with a reason why it was not filed in the trial court.

We do not think the shaving is of such a nature that requires a reversal of the judgment, and it 'is therefore ordered to be affirmed. 
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