
    AKERS v. STATE.
    (No. 7497.)
    (Court of Criminal of Texas.
    Feb. 28, 1923.
    Rehearing Denied April 18, 1923.)
    On Motion for Rehearing.
    Criminal law" <&wkey;l 110(8) — Showing in support of application for certiorari to perfect record held insufficient.
    Where, after conviction and affirmance because neither statement of facts nor bills, of exception were in the record, appellant filed a motion for rehearing, with an application for certiorari to perfect the record, and averred that he had made a pauper’s affidavit, under Vernon’s Ann. Code Cr. Proc. 1916, art. 845a, and filed with his application a copy thereof, which, though it appeared to .have been sworn to by a'notary public, did not contain any evidence of ever having been filed, 'held, that the showing made was insufficient for, not only must the record, show that, the affidavit in proper form was made and filed, but it' must appear that it was called to the attention of the court, so that he' might order the forwarding of the desired statement of facts.
    Appeal from Criminal District Court, No. 2, Dallas County; C. Á. Pippen, Judge.
    Mat Akers was convicted of robbery, and he appeals. Judgment affirmed.
    Application for certiorari denied." ‘
    Nelms & Short, of Dallas, .for appellant.
    R. ,G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in criminal district court No. 2 of Dallas county of robbery, and his punishment fixed at seven years in the penitentiary,

The record is before us without a statement of facts or a bill of exceptions. The indictment charges, in the usual form, that appellant did unlawfully and willfully make an assault upon the person of Eay Myers, and did then and there by said assault and by violence to the said Eay Myers, and by putting the said Eay" Myfers in fear of life and bodily injury, did then and there fraudulently take from the person and possession of said Fay Myers 'one ring. The, charge of the court submitted the offense in appropriate language.

Finding no error in the record, an affirmance is ordered.

On Motion for Rehearing.

This case was recently .affirmed, it appearing that there was neither statement of facts nor bills of exception in the record. Appellant presents a motion for rehearing, accompanied by an application for certiorari to perfect the record. He avers that he made a pauper’s affidavit under article 845a, Vernon’s C. O. P., and attaches a purported copy .of such affidavit, game appears to have been sworn to. before a notary public but contains no* evidence of having ever been filed. This is all the showing made for rehearing and upon the application for certiorari. - This is not sufficient. Not only must the record show that .the affidavit in proper form was made and filed, but it must further appear that same was called to the attention of the trial court in order that he might have made an order directing the court stenographer to make out and forward the desired statement of facts. Wood v. State, 67 Tex. Cr. R. 609, 150 S. W. 194; Olivus v. State, 61 Tex. Cr. R. 191, 134 S. W. 694; Jackson v. State, 70 Tex. Cr. R. 292, 156 S. W. 1183; Dewis v. State, 77 Tex. Cr. R. 200, 177 S. W. 972. Not only is there no showing of any effort to secure the order of the trial court for such statement of facts, but there is no certification by any officer of the trial court that the affidavit of appellant was ever filed. The transcript appearing in this record was certified by the clerk of the court below at a date later than that of-the affidavit attached to appellant’s motion.

Finding no merit in either appellant’s motion for rehearing or his application for cer-tiorari, both will be denied.  