
    LAWLESS v. STATE.
    No. 15139.
    Court of Criminal Appeals of Texas.
    April 13, 1932.
    R. R. Huffman, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Driving an automobile while intoxicated is the offense; penalty assessed at confinement in the penitentiary for two years.

The motion for new trial was overruled and notice of appeal entered on the 26th day of September, 1931. The statement of facts was filed in the trial court on, January 5,-1932. By statute (article 7.60, subd. .5, 0. :0. P.) the time that may intervene between the notice of appeal- and the filing of the statement of facts in the trial court is limited to 90 days. Unless it is shown that the delay was not due to any fault or negligence of the appellant or his counsel, this court is precluded from giving consideration to the statement of facts. See George v. State, 25 Tex. App. 229, 8 S. W. 25, and cases collated. For the reasons stated, we are not permitted to consider the statement of facts.

The hills of exception were filed in time for consideration. However, they present no question for review which, in the absence of thé statement of facts, can be considered.

The point made that the court was in error in depriving the jury of the right to pass upon the identity of the offense in considering the matter of increased puifishment, as set forth in article 61, P. C. 1925, is not supported by the record. The jury was accurately and properly charged upon the subject.

The judgment is affirmed.  