
    DAVIS v. STATE.
    (No. 11103.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Criminal law <@=*1092(7), 1099(6) — Bills of exception and statement not filed within 90 days, held not reviewable; reporter’s explanatory affidavit not showing extent of excusable delay (Code Cr. Proc. 1925, art. 760!, subd. 5).
    Bills of exception and statement of facts, not filed under Code Cr. Proc. 1925, art. 760, subd. 5, within 90 days from date appellant’s motion for new trial was overruled, held not reviewable, where court reporter’s affidavit, explaining delay in preparing statement and memorandum of bills of exception, did not state how much of a delay occurred, or when they were in fact delivered to appellant, and trial court’s approval of statement of facts was shown to be seven days before time for filing expired.
    Appeal from District Court, Howard County; Fritz R. Smith, Judge.
    C. F. Davis was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    D. E. Bishop, of Big Springs, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale. Punishment is one year in the penitentiary.

Appellant’s motion for new trial was overruled on the 21st day of February, and 90 days allowed therefrom in which to file statement of facts and bills of exception. Subdivision 5, art. 760, C. C. P. The 90 days expired on the 22d day of May. The hills of exception and statement of facts were not filed in the lower court until the 27th day of May. We find iq the record an affidavit from the court reporter explaining that he was delayed in preparing the statement of facts and the memorandum of bills of exception on account of eye trouble and the sickness of his wife, but nowhere in the affidavit does he state how much of a delay occurred, or when in fact they were delivered to appellant or his attorney. The date of the court’s approval on the bills of exception is not shown, but the approval of the statement of facts is shown to have been on the 15th day 'of May, which was 7 days before the time for filing expired. No excuse appears why it was not filed within that time. Under the showing made, we are not authorized to consider the bills of exception or statement of facts.

The judgment is affirmed.  