Opinion
No. 26646.
November 25, 1953.
Appeal from the District Court, Randall County, Henry S. Bishop, J.
George S. McCarthy, Amarillo, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
Appellant was convicted under the third count of an indictment charging him and three others with robbery of one Gary D. Jennings. The jury assessed the minimum punishment of 5 years in the penitentiary.
The sole question presented in the brief and oral argument in appellant's behalf relates to remarks of the assistant district attorney during their arguments to the jury.
The question raised cannot be considered for several reasons.
First, notice of appeal was given on January 10, 1953, when appellant's motion for new trial was overruled, and the statement of facts wherein appellant seeks to raise the question was not filed in the trial court until Mary 1, 1953.
Art. 759a, V.A.C.C.P. requires that the statement of facts be filed in the trial court within 90 days 'after the date of giving notice of appeal'.
Second, we have held that objections to argument cannot be preserved as a part of the statement of facts, but require an independent bill of exception. McCutcheon v. State, Tex.Cr.App., 252 S.W.2d 175; Hernandez v. State, Tex.Cr.App., 262 S.W.2d 200.
We find nothing in the amendment to art. 759a, V.A.C.C.P. to alter this requirement.
The judgment is affirmed.