PER CURIAM.
Driving while intoxicated is the offense; the punishment, a fine of $100 and 5 days in in jail.
The record is before us without a statement of facts or bills of exception. Nothing is presented for review.
The judgment is affirmed.
McDONALD, Judge.
Upon original submission, this case was affirmed in a Per Curiam opinion delivered November 1, 1961, the record being before us without a statement of facts or bills of exception, and nothing having been presented us for review.
A statement of facts signed by the trial judge on November 9, 1961, and filed in the trial court on November 9, 1961, was filed in this Court on November 15, 1961.
Appellant states in his motion for rehearing that there was 'error in the preparation of the transcript on appeal for the reason that there was no statement of facts of said proceedings included therein; that upon receiving said opinion of the affirmance of said judgment, appellant immediately filed his motion with the trial court, and good cause shown, same was so ordered.' Appellant states that a different result will probably obtain if this Court considers the statement of facts now on file with this Court.
We observe that the verdict of the jury was rendered on February 22, 1961; notice of appeal to this Court was given on April 3, 1961; the case was submitted originally to this Court on October 25, 1961; and, as above stated, our opinion was handed down on November 1, 1961.
The State challenges the late filing of this statement of facts and its consideration by this Court.
We are aware of the provisions of Section 4 of Article 759a, Vernon's Ann.C.C.P., allowing a filing after the 90 days provided when the trial judge signs same. However, here, the statement of facts was filed 220 days after notice of appeal was given, or 130 days beyond the normal 90-day period in which to file. We further observe that the statement of facts filed in this Court was signed by the trial court judge some 8 days after the deliverance of the original opinion.
While this Court, has, on occasion, withdrawn its original per curiam opinion and allowed the statement of facts to be filed and considered by this Court, it has only done so in cases where the statement of facts had been filed with the trial court prior to original submission of the case before this Court.
In the recent opinion of Selvidge v. State, Tex.Cr.App., 345 S.W.2d 523, 527, on rehearing, this Court had an occasion to consider and decide a very similar fact situation. There, after the original submission, a statement of facts was filed and signed by the trial court judge, some 8 days after the deliverance of the original opinion. This Court, in refusing to consider the late filed statement of facts, in construing the legislative intent behind Section 4, Article 759a, supra, said:
"It is our conclusion that to hold otherwise would prohibit us from ever being able to effectively terminate appeals to this court."
We think the Selvidge case controls the disposition of this case.
Appellant's motion for rehearing is overruled.