
    FERNANDEZ v. STATE.
    No. 21566.
    Court of Criminal Appeals of Texas.
    June 25, 1941.
    
      C. H. Gilmer, of Roclcsprings, for appellant.
    Spurgeon E. Bell, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the crime of murder, and upon his trial was found guilty of murder with malice, and sentenced to a term of five years in the penitentiary.

We find this record in a peculiar condition. The term of court at which appellant was convicted began in September, 1940; the trial court continued such term twice, and until same adjourned on December 23, 1940, on which date appellant’s •motion for a new trial was overruled and notice of appeal was given. There was no mention of any granted time in which to prepare and have approved and filed bills of exception and statement of facts entered in the order overruling such motion. We next find the transcript filed in this court on February 26, 1941, which was well within the statutory time. However, on May 23, 1941, the statement of facts herein was filed in this court, bearing the file ■mark of the district clerk of Edwards County of date January 23, 1941. We also find that such statement of facts was agreed to by the attorneys in the case on the date of May 13, 1941, as well as approved by the trial judge at such latter date. In other words, this statement of facts was approved by the district judge 141 days after the notice of appeal was entered, and filed in this court 151 days after such notice.

The district clerk should not file Any statement of facts until the same has received the approval of the judge trying the case, and we can not consider such a statement without the proper and timely approval of such judge. See Art. 760, C.C.P., Vernon’s Ann.C.C.P. art. 760.

It is also noted that the statement ■of the facts adduced upon the hearing of the motion for a new trial is not agreed to by the attorneys in the case, nor approved nor signed by the trial judge. We can not consider this statement.

There are no bills of exceptions in the record. The proceedings appear to be regular, and perceiving no error in the record, the judgment is affirmed.  