Assault with intent to murder with malice is the offense; the punishment, nine years in the penitentiary.

The statement of facts accompanying this record does not show to have been filed in the trial court. It is therefore not subject to be considered by this court.

In the absence of a statement of facts, nothing is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has now filed the joint affidavit of the Judge of Criminal District Court No. 3 and the Clerk of Criminal District Court Ho. 3, wherein it is shown that the original statement of facts was filed with the clerk of the trial court on April 9, 1959.

Notice of appeal was given on December 30, 1958.

It is required by art. 759a, Vernon’s Ann. C.C.P., that the statement of facts be filed with the clerk of the trial court within ninety days after the date of giving notice of appeal.

The statement of facts was filed more than ninety days after the giving of notice of appeal, therefore it cannot be considered.

There are no formal bills of exception.

Appellant’s motion for rehearing is overruled.

Opinion approved by the Court.