Victorian v. State

WOODLEY, Judge. The appeal is from a conviction for murder, with punishment assessed by a jury at 99 years in the penitentiary. Appellant’s motion for new trial was overruled and he was sentenced and gave notice of appeal on November 10, 1949. The trial court’s order allowed appellant 90 days “to prepare appeal.” The statement of facts and bills of exception were not filed Until February 9, 1950, which was 91 days from the date the notice of appeal was given. Not having been filed within the time allowed by law and by the trial court’s order, the statement of facts and bills of exception cannot be considered. See Art. 760(5), C.C.P.; Huber v. State, 151 Tex.Cr.R. 306, 207 S.W.2d 383; Crowder v. State, 110 Tex.Cr.R. 572, 9 S.W.2d 1042; Mayo v. State, 115 Tex.Cr.R. 546, 27 S.W.2d 811. It appears that in pronouncing sentence against appellant the trial court failed to give effect to the indeterminate sentence law, Art. 775, C.C.P., Vernon’s Ann. C.C.P. art. 775. The sentence is reformed so as to provide that appellant be confined in the penitentiary for a term of not less than two years nor more than ninety nine years. Otherwise the proceedings appear to be regular. The judgment, as reformed, is affirmed. Opinion approved by the Court.