Muniz v. State, 22446.

• Decision Date: 28 April 1943
• Docket Number: No. 22446.,22446.
• Citation: 170 S.W.2d 767
• Parties: MUNIZ v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W.2d 767

MUNIZ v. STATE.

No. 22446.

Court of Criminal Appeals of Texas.

April 28, 1943.

Commissioners' Decision.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Samuel E. Muniz was convicted of rape by force, and he appeals.

Affirmed.

Joseph J. Roybal, and Major Morton Dodrill, both of El Paso, for appellant.

Roy D. Jackson, Dist. Atty., and Gill L. Newsom, Asst. Dist. Atty., both of El Paso, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a case of rape by force; the punishment, twenty years' confinement in the state penitentiary.

The State moves to strike the bills of exception appearing in this record because same were not filed within the time required by law.

The motion for new trial was overruled and notice of appeal given on the 16th day of October, 1942. Appellant was, at that time, allowed sixty days from and after the adjournment of court within which to file bills of exception. Court adjourned October 17th, 1942. The bills of exception were filed January 4th, 1943, or eighty days after notice of appeal was given and seventy-nine days after the adjournment of court.

Under the express mandatory provisions of Art. 760, C.C.P., Vernon's Ann. C.C.P. art. 760, a defendant is entitled to thirty days from and after the adjournment of court within which to file his bills of exception; and, for good cause shown, the trial judge may extend the time not to exceed ninety days from the date notice of appeal was given.

The bills of exception were not filed within the time required, unless the trial court extended the time as authorized by the statute.

Appellant relies upon two extension orders, by which, he contends, the trial court did extend the time. The first of these extension orders shows that the time was extended within which the "Statement of Facts and Transcript in the Court of Criminal Appeals" might be filed, while the second extension order shows that the time in which to file "the statement of facts and transcript" was further extended. Neither of these orders relates to, nor extends the time for, filing the bills of exception, and same cannot be given the construction that the time for filing the bills of exception was extended thereby.

This court is without power to set aside, nullify, or refuse to follow, the mandate of a statute. The bills of exception not having been filed within the time required by law, they are not subject to be considered by this court. The...