Ex parte Bice , 1927 Tex. Crim. App. LEXIS 850 ( 1927 )

HAWKINS, J.

It was agreed between relator and the state that this court should consider the statement of facts heard by the honorable district court of Brazoria county upon the affidavit alleging insufficient bail as the facts before this court upon relator’s original application here for writ of habeas corpus, alleging that the bail fixed by said district court was excessive. By such agreement the said facts became the statement of facts upon which our former opinion was predicated. Relator now files his motion for rehearing, and attaches thereto the ex parte affidavits of three persons, and asks that they be considered in connection with the facts theretofore agreed to. We think this should not be done. It is in effect an effort to amend by ex parte affidavits the statement of facts heretofore considered by agreement. In principle the same question is presented as that considered in McConnell v. State, 85 Tex. Cr. R. 409, 212 S. W. 498; Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380; McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394; Hurd v. State, 99 Tex. Cr. R. 388, 269 S. W. 439. We are not to be understood as holding that, upon the hearing of an original writ of habeas corpus before this court, the facts might not in some instances be presented by both parties by affidavits, where each party has opportunity to so present them, but only as announcing that, in the present case, we think the agreed statement of facts cannot be supplemented by the ex parte affidavits attached to the motion.

The motion for rehearing is overruled.