
    John Carrol Reynolds v. State
    No. 29,151.
    June 29, 1957.
    Appellant’s Motion for Rehearing Overruled October 16, 1957.
    
      W. T. Briggs, Port Arthur, for appellant.
    
      Feagin W. Windham, District Attorney and Charles L. Ford, Jr., Assistant District Attorney, Orange, and Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

Appellant was convicted under Art. 802c, V.A.P.C., of murder by accident and mistake while driving intoxicated and his punishment assessed at confinement in the penitentiary for 2 years.

The statement of facts appearing in the record is not shown to have been filed with the clerk of the trial court within 90 days after notice of appeal was given.

Art. 759a, Sec. 4, Vernon’s Ann. C.C.P., provides that a statement of facts shall be filed within 90 days after notice of appeal has been given. The statement of facts, not having been filed within the 90-day period provided by statute, cannot be considered. Tarwater v. State, 160 Texas Cr. Rep. 59, 265 S.W. 2d 83, 267 S.W. 2d 410; and Scales v. State, 272 S.W. 2d 118.

In the absence of a statement of facts which can be considered, we are not in position to pass upon the questions presented by appellant pertaining to the admissibility of and sufficiency of the evidence to support the conviction. Hankins v. State, 163 Texas Cr. Rep. 553, 294 S.W. 2d 850.

The indictment, as well as all other matters of procedure, appears regular; therefore, nothing is presented for review.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

In view of the controverting affidavits of the district clerk and the attorney who prosecuted the case for the state, we must hold that it has not been shown that the statement of facts was in fact delivered to the district clerk for filing within the 90 days allowed by the statute.

Appellant’s motion for rehearing is overruled.  