
    CAPPS v. STATE.
    No. 18154.
    Court of Criminal Appeals of Texas.
    April 8, 1936.
    Paul E. Parkins, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. Appellant contends that he has been deprived of a statement of facts. Notice of appeal was given July 24, 1935. On October 21, 1935, appellant filed an affidavit to the effect that he was unable to pay for a statement of facts or give security therefor. The trial judge granted the application and ordered that a statement of facts be prepared by the court reporter. It is observed that the application was filed eighty-nine days after notice of appeal had been given. Appellant had ninety days from the date notice of appeal was given to file the statement of facts. Article 760, subd. 5, C.C.P. It is not shown that the statement of facts could have been filed in time if the order of the trial judge had been complied with. No legal excuse is shown for the delay in filing the affidavit. We are constrained to overrule appellant’s contention.

In the absence of a statement of facts and bills of exception, no question is presented for review.

The judgment is affirmed.

MORROW, P. J., absent.

PER CURIAM.

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.  