Opinion
No. 21812.
Delivered December 17, 1941. On Motion to Reinstate Appeal February 18, 1942. On Motion for Rehearing March 11, 1942.
1. — Bail Bond Forfeiture — Failure to File Briefs.
On appeal from a judgment forfeiting a bail bond, the appeal is governed by the Rules of Civil Procedure, and is controlled by the rule authorizing dismissal for failure to file briefs, where no showing is made to excuse the failure.
2. — Bail Bond Forfeiture — Appeal Dismissed.
Where the record, on appeal from a judgment forfeiting a bail bond, contained no bills of exception or assignments of error, and the procedure did not show what question appellants had in mind, no brief was furnished, and examination of the record did not show fundamental error, appeal was dismissed.
ON MOTION TO REINSTATE APPEAL.3. — Bail Bond Forfeiture — Evidence.
On appeal from a judgment forfeiting a bail bond, where appellants did not file a brief, as required under the Rules of Civil Procedure, until after their appeal had been dismissed and motion for reinstatement had been submitted, and the only error assigned or discussed therein was that the trial court erred in instructing the jury to return a verdict for the State, and no bills of exception accompanied the record, appellate court was not required to examine the facts to determine the sufficiency of the evidence introduced to constitute a valid defense.
4. — Same.
Evidence, in bail bond forfeiture proceeding, examined and found insufficient to show a valid defense such as would nullify the forfeiture of the bond.
ON MOTION FOR REHEARING.5. — Rehearing — Filing Date.
Appellant's motion for rehearing, filed more than 15 days after the opinion refusing appellant's motion to reinstate the appeal was handed down, was filed too late, and may not be considered.
Appeal from District Court of Wichita County. Hon. Ernest Robertson, Judge.
Bond forfeiture proceeding by the State of Texas against appellants. From a judgment of forfeiture, appellants appeal.
Motion to dismiss granted, and motion to reinstate overruled.
The opinion states the case.
R. S. Ragsdale, of Burkburnett, for appellant.
Spurgeon E. Bell, State's Attorney, of Austin, for the State.
This is a second appeal from a judgment of bond forfeiture, the former being reported in 139 Tex.Crim. Rep., 141 S.W.2d 597.
The voluminous record in this case contains no bills of exception and no assignments of error. We have examined the procedure and confess our inability to understand the question which appellants have in mind. No brief has been furnished the court in behalf of the appeal and we are unable from an examination of the record to find any fundamental error.
Further, the appeal is governed by the rules of civil procedure (Art. 866, C. C. P.) and is, therefore, controlled by Rule 415, Texas Rules of Civil Procedure, which has not been complied with. This court has always dismissed the appeal in such cases where no brief has been filed and no showing made to excuse the failure. (Wade, et al, v. State, 43 S.W.2d 938 and authorities there cited.)
The State's motion to dismiss the appeal is granted.
ON MOTION TO REINSTATE APPEAL.
Only after their motion to reinstate the appeal had been submitted in this court did appellants file a brief as is required under the rules mentioned in the original opinion. The only error assigned or discussed therein is that the trial court erred in instructing the jury to return a verdict for the State. No bills of exception accompany the record.
Notwithstanding we are not required to do so, we have examined the facts to determine if there was sufficient evidence introduced to constitute a valid defense such as would nullify the forfeiture of the bond. We have found none.
The motion to reinstate the appeal is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
The opinion disposing of the appeal was delivered on February 18, 1942. A motion for rehearing reached the Clerk of this court on March 7th, 1942. The post mark on the envelope shows it was not posted in the mail for transmission until March 6, 1942. The fifteen days within which a motion for rehearing could be filed expired on March 5th.
Not having been filed in time the motion may not be considered. See Fitts v. State, 98 Tex.Crim. R., 264 S.W. 1006; Smith v. State, 127 Tex.Crim. R., 75 S.W.2d 449.