
    John L. SHERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 29089.
    Court of Criminal Appeals of Texas.
    June 5, 1957.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

There appears in the transcript what purports to be a copy of the statement of facts on file in the cause.

Art. 760(2), Vernon’s Ann.C.C.P., provides that the statement of facts shall not be copied in the transcript but shall be filed in duplicate with the clerk and the original sent up as a part of the cause on appeal.

The instrument being copied in the transcript and not being the original statement of facts bearing the approval of the trial judge or that of counsel for the state and the accused cannot be considered. Art. 759a, V.A.C.C.P.; Art. 760, supra; Brewster v. State, 154 Tex.Cr.R. 177, 226 S.W. 2d 124 and McDaniel v. State, 156 Tex.Cr.R. 126, 239 S.W.2d 630.

In the absence of a statement of facts which can be considered we cannot appraise appellant’s exception to the court’s action in refusing his requested instruction to the jury.

If in fact the original statement of facts was timely approved and filed, it maybe forwarded to this Court and appellant may file a motion for rehearing if he so de-sifes. However, our examination of the copy has revealed that there was sufficient, evidence to sustain the conviction and we-observe no reversible error.

The judgment is affirmed.

Opinion approved by the Court.  