Garcia v. State

WOODLEY, Presiding Judge.

The offense is contributing to the delinquency of a minor; the punishment, 30 days in jail and a fine of $50.

Trial was before the court upon a plea of guilty.

There is one bill of exception. It complains that the court overruled appellant’s motion for new trial without hearing evidence thereon.

The motion for new trial was not sworn to or supported by affidavit. After it was overruled, appellant made an affidavit in support of the allegation that he did not plead guilty to the charge against him. This affidavit was made a part of his bill of exception.

We notice that appellant’s affidavit was sworn to before his attorney on appeal.

The motion for new trial, not being sworn to or supported by affidavit, was insufficient and the court’s action in overruling it is not ground for reversal. White v. State, 321 S.W. 2d 582.

The affidavit subsequently made will not suffice, both because it was made after the court had overruled the motion for new trial and because it was sworn to before appellant’s attorney on appeal. Teniente v. State, 151 Texas Cr. Rep. 438, 207 S.W. 2d 379, and other cases cited under Art. 756 V.A.C.C.P., Note 12.

The judgment is affirmed.