
    HOSKINS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, Feb. 18, 1914.)
    1. Criminad Law (§ 1144») — Appeal — New Trial — Denial—Review.
    Where it appeared that the trial court heard evidence on defendant’s motion for a new trial, but the evidence so heard was not in the record, the Court of Appeals would conclude that the testimony did not sustain the motion.
    |.Ed. .Note. — 1 or other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781., 2901, 3016-3037; Dec. Dig. § 1144.*]
    On Motion for Rehearing.
    2. Criminal Law (§ 1099*) — Appeal—Statement of Facts — Filing—Time.
    Where a statement of facts heard on a motion for new trial was not filed during the term, it could not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from District Court,'El Paso County; Dan M. Jackson, Judge.
    Charles R. Hoskins was convicted of forgery, and appeals.
    Affirmed. Motion for rehearing overruled.
    Stanton & Weeks, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted of forgery, and his penalty fixed at four years in the penitentiary. He filed a proper plea seeking to have the jury recommend that his sentence be suspended. The court properly submitted this question to the jury, and the jury refused to so recommend. He pleaded guilty. In his motion for new trial he alleged that he had agreed with the district attorney to plead guilty with the understanding from the district attorney that he should receive a sentence of two years, and it should be suspended. He further therein says that he understands that sentence can only be suspended by tbe court wben recommended by tbe jury, and, tbe jury baying failed to recommend tbe suspension of bis sentence and tbe district attorney being unable to carry out tbe agreement witb bim, he thereupon asked that tbe verdict be set aside, be granted a new trial, another jury impaneled, and again try bis case; that be still insists that be wants to plead guilty, and does not desire to avoid bis agreement to that effect, but wants the state to carry out its agreement witb bim. This is tbe sole ground for a new trial. Tbe judgment of tbe court on said motion shows that tbe court beard evidence thereon and after so bearing tbe evidence overruled tbe motion. What this evidence was tbe record in no way discloses. In bis sworn plea, seeking a suspended sentence, be makes no allegation as to any agreement witb tbe district attorney, but merely “states to the*, court that he has never heretofore been convicted of a felony in this or any other state, and makes application for suspended sentence, in case of conviction, as provided by law.”

Under tbe circumstances we must conclude that the testimony heard by tbe district judge on his motion for new trial did not sustain bis allegation, and that tbe action of tbe court in overruling bis motion is correct. So that tbe judgment will be affirmed.

On Motion for Rehearing.

After tbe original opinion affirming this case was handed down appellant made a motion for rehearing, and for a writ of certiora-ri to require the clerk to send up tbe statement of facts and other data which bad not been filed herein wben tbe original opinion was handed down. We granted the writ of certiorari, and tbe clerk has now sent up, and there has been filed herein, tbe said papers. By them and tbe record in connection therewith it is shown that tbe term of court at which this conviction was bad adjourned June 28, 1913. The court stenographer certifies that be was not called upon by appellant or bis attorneys to prepare the statement of facts of tbe trial, nor that beard on bis motion for a new trial, until September, 1913, and that be at once, on or about September 5, 1913, prepared both said statements of facts and delivered them to appellant’s attorneys. Tbe clerk shows that these papers were not banded to bim for filing or other action until “some time in tbe month of September or October.” And that upon inquiry of tbe district judge who tried tbe case be was told to put bis file mark thereon, as filed July 1,1913, which be did. What purports to be this original statement of facts beard on tbe trial of tbe case is neither agreed to by tbe attorneys for either side, nor is it in any way approved by tbe court. What purports to be a statement of facts beard on tbe motion for a new trial is signed by the district attorney for tbe state and approved by tbe district judge, but it is not signed, nor agreed to by appellant or bis attorneys. This, however, would make no difference, as tbe approval of tbe judge might be sufficient.

In no event can this purported statement of facts beard on tbe motion for new trial be considered by this court. In the first place, as shown above, it was not delivered to the clerk for filing until some time in September or October, 1913. Even tbe file mark placed on it by tbe clerk, of July 1,-1913, was after tbe adjournment of tbe court. It is unquestionably settled in this state that, in order to be considered at all by this court, such statement of facts beard on tbe motion for new trial must be filed during term time; and, unless so filed, this court cannot consider it. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 977; Bailey v. State, 144 S. W. 1005. So that, as tbe record is presented to us, we cannot review appellant’s contention that a new trial should have been granted so that his claimed agreement witb tbe district attorney that his sentence should be suspended could be enforced, even if tbe district attorney bad power and authority to make any such agreement.

Tbe motion is overruled.  