
    LOPEZ v. STATE.
    (No. 10936.)
    Court of Criminal Appeals of Texas.
    May 4, 1927.
    Rehearing Denied June 1, 1927.
    1. Criminal law <&wkey;>l090(l) — Nothing is presented for review, in absence of statement of facts or bill of exceptions.
    Record containing neither statement of facts nor bill of exceptions presents nothing for review.
    On Motion for Rehearing.
    2. Criminal law <&wkey;>l099(6) — Statement of facts, filed after affirmance but within ninety days after notice of appeal, held, under statute, entitled to consideration on motion for rehearing (Code Cr. Proo. 1925, art. 760, subd. 5).
    Where, after affirmance of judgment on record containing no statement of facts, statement of facts previously approved by trial judge was filed in appellate court, all within 90 days after notice of appeal, held, under Code Cr. Proc. 1925, art. 760, subd. 5, court was required to consider such statement of facts on motion for rehearing.
    3. Criminal Jaw &wkey;>!090(8, 14) — Without bili of exceptions,, court cannot consider admissibility of evidence and propriety of instructions.
    In absence of bill of exceptions bringing them forward, appellate court cannot consider complaints of the admission of incompetent evidence or giving of instructions.
    4. Criminal law <&wkey;>l038(2) —• In absence of timely objection, failure to charge on circumstantial evidence is not reversible error.
    Failure to charge on the law of -circumstantial evidence does not require a reversal, in the absence of timely objection.
    5. Criminal 'law <&wkey;l090(l) — Statement of facts without bill of exceptions can be considered only as affecting sufficiency of evidence to support conviction.
    Statement of facts without bill of exceptions can be considered only on question of sufficiency of evidence to support conviction.
    Appeal from District Court, Gillespie County ; J. H. McLean, Judge.
    Erasmus Lopez was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    C. J. Andrews and Leonard Brown, both of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; the punishment being one year in the penitentiary.

The record is before us without statement of facts or bills of exception. In this condition nothing is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

This ease was tried in the lower court on the 23d day of February. Motion for new trial was overruled on the 3d day of March, court adjourning the same day. No extension of time for filing statement of facts was granted. The transcript reached and was filed in this court on the 18th day of April, and the judgment affirmed on the 4th day of May, at which time no statement of facts was on file. We now find a statement of facts in the record which was approved by the trial judge on the 29th day of April, filed in the lower court on the 19th day of 'May, and in this court on the 20th day of May, all being within 90 days from the time notice of appeal was given. A clause of subdivision 5, art. 760, O. C. P. 1925, reads as follows:

“A statement of facts in a felony case filed within ninety days from the date the notice of appeal is given shall be considered as having been filed within the time allowed by law for filing same, notwithstanding the succeeding provisions of this subdivision.”

It seems clear that we are under obligation, in obedience to the statute quoted, to consider the statement of facts.

-Appellant bases his motion for rehearing on the claim that it is revealed by the statement of facts that hearsay evidence went before the jury, that witnesses were permitted to state their conclusions, and that other improper evidence was received, notably proof that appellant made no statement on the examining trial. It is insisted that we should consider these matters because appellant had no attorney representing him, although no complaints are brought forward by bills of exception. However much we might feel constrained to adopt appellant’s suggestion, we are unaware of any right on the part of this court to consider such complaints, in the absence of bills bringing them forward for review. The same is true of appellant’s insistence that the facts call for a charge on circumstantial evidence. It has been held many times that failure to charge on circumstantial evidencé does not call for a reversal in the absence of timely objection. Charles v. State, 85 Tex. Cr. R. 534, 213 S. W. 266. We cannot refrain from observing that, when one accused of crime is put to trial without counsel to properly protect his legal rights, common fairness should deter prosecuting officers from introducing into the case any obviously improper evidence, and, when such an attempt is made, the trial court should promptly interpose his authority to prevent it.

The statement of facts can only be considered on the question of the sufficiency of the evidence to support the conviction. We have examined it carefully and entertain no doubt upon that point. Even disregarding the evidence which could have been excluded on proper objection, that remaining is amply sufficient to make out the state’s case.

The motion for rehearing is overruled. 
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