
    CUMMINGS v. STATE.
    (No. 10105.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    1. Criminal law <@=1077 — To require free transcript to be furnished defendant, he must make affidavit of inability to pay (Code Cr. Proc. 1925, art. 760, subd. 6).
    Under Code Cr. Proc. 1925, art. 760, subd. 6, affidavit of defendant that he is unable to pay for transcript for appeal is necessary to require it to be furnished to him.
    2. Criminal law <@=641 (3).
    It is only in capital cases that court must appoint attorney to represent defendant.
    3. Criminal law <@=1077.
    Under Code Cr. Proc! 1925, art. 760, subd. 6, free transcript need not be furnished to counsel appointed to represent defendant, where appointment was not required, but matter of grace, because not in a capital case.
    <@=Eor otter cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
    .Commissioners’ Decision.
    Appeal from District Court, Liberty County ; Thos. B. Coe, Judge.
    Brady Cummings was convicted of theft, and he appeals.
    Affirmed.
    C. E. Smith, of Houston, for appellant.
    Sam D. Stinson, State’s Atty, of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is theft, and the punishment is two years in the penitentiary.

No statement of facts has. been filed in this court. Appellant’s attorney files an affidavit, in which he states in effect that some time during the fall of 1925 he was in Liberty county when the case of State v. Brady Cummings was tried; that the defendant asked the court to appoint counsel to assist him, inasmuch as he was unable to hire counsel in his behalf, which request the court refused; that after the conviction of the appellant and when he appeared for sentence he gave notice of appeal, and the judge of the district court of Liberty county appointed the affiant to perfect an appeal for the defendant, at which time a formal motion for a new trial was filed and overruled. Af-fiant further states that the defendant is financially unable to assist himself in the trial, and that he is a pauper, and that he, affiant; requested the official court reporter to give him a statement of facts in the case' that he might file it and that the court reporter promised to do this; that some 15 or 20 days later affiant met the court reporter and asked that he prepare the statement of facts, telling him that defendant’s people had raised no money in this behalf, and that he could never get a statement of facts prepared for the appellant; that he then asked the trial court to direct, the court reporter to prepare a statement of facts in the case, inasmuch as the court had appointed affiant to perfect the appeal of the appellant, and the court gave no definite answer, but said he would look into the matter.

The affidavit of appellant’s attorney ¡is rather lengthy, but, in addition to the above, the substance of it is that the court refused to require the court reporter to furnish a statement of the facts. Subdivision 6, art. 760, C. C. P. 1925 Revisión, provides that—

“When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant. In all cases where the court is required to and does appoint an attorney to represent the defendant in a criminal action, such reporter shall be required to furnish the ■ attorney for said defendant, if convicted and when an appeal is prosecuted, with a transcript of his notes. Eor each said service he shall be paid by the state of Texas, upon the certificate of the trial judge, one-half of the rate provided by law in civil cases.”

It is clear from the record before us that appellant does not bring himself within the first provision contained in said subdivision of the statute, for the reason that the appellant did not make any affidavit to the effect that he was not able to pay for a transcript of the testimony or to give security therefor. The transcript contains no affidavit of the appellant. If appellant therefore was entitled to anything, it was to have the reporter furnish his attorney with a transcript of his notes.

The case at bar was not a capital case. It was an ordinary felony, and it is only in capital cases that the court is required to appoint an attorney to represent the defendant in a criminal action. Pennington v. State, 13 Tex. App. 44; Brotherton v. State, 17 S. W. 932, 30 Tex. App. 369; Mass v. State (Tex. Cr. App.) 81 S. W. 46; Brown v. State, 106 S. W. 368, 52 Tex. Cr. R. 267; Burden v. State, 156 S. W. 1196, 70 Tex. Cr. R. 349.

The fact that counsel was appointed by tbe qourt to perfect appellant’s appeal was in tbe nature of an act of grace and accommodation on tbe part of tbe court. It is clear from tbe authorities above cited that ■be was not required to do this, and it is only in cases where tbe court is required to and does appoint an attorney to represent tbe defendant in a criminal action that tbe court reporter is required to furnish tbe attorney for said defendant, if convicted, and when an appeal is prosecuted, with a transcript of bis notes. Prom what has been said it follows that in our opinion tbe court was not in error in refusing to require tbe court reporter to furnish appellant’s attorney with a statement of facts in this case.

There are no bills of exceptions and no complaints as to procedure contained in tbe record, and, there being nothing to show error, tbe judgment is in all things affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of the Court of Criminal Appeals and approved by tbe court  