
    AKERS v. STATE.
    (No. 7496.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1923.
    Rehearing Denied May 23, 1923.)
    On Motion for Rehearing.
    Criminal law <&wkey;l077 — Affidavit of inability to pay costs of appeal must have been filed in trial court to warrant certiorari by Court of Criminal Appeals.
    Where, on motion for rehearing, after af-firmance of a conviction for robbery, the appellant applied for a writ of certiorari to require the court stenographer to prepare and forward a statement of facts and appended to his motion a copy of an affidavit of his inability to pay the costs of appeal, such motion must be denied, where it was not made to appear that the affidavit was presented to the trial court as required by Vernon’s Ann. Code Cr. Proc. 1916, art. 845a.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Otis Akers was convicted of robbery, and he appeals.
    Affirmed, and application for certiorari denied.
    Otis Akers, in pro. per.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P..J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of seven years.

The indictment is regular; no facts are brought up for review, and no rulings of the trial court are brought forward for revision by bill of exceptions.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant applies for a writ of certiorari to require the court stenographer to prepare and forward to this court a statement of facts. Appended to the .motion is a copy of an affidavit in which the appellant makes oath that he was unable to pay the costs of appeal. In order to justify this court in granting such an application, it would be necessary that it appear that the affidavit was presented to'the court. See Ex parte Fread, 83 Tex. Cr. R. 467, 204 S. W. 113. No such action is revealed in-the present case. The procedure pointed out in article 845a, Vernon’s Ann. C. C. P. 1916, upon which the right to the statement of facts under the circumstances is based, not having been followed, we have no choice but to refuse to order the court stenographer to prepare a statement of facts. See, also, Akers v. State (Tex. Cr. App.) 249 S. W. 848.

The application for writ of certiorari is denied, and the motion for rehearing is overruled. 
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