Lopez v. State

Appellant, by his motion for rehearing, urges misconduct on the part of the jury in hearing evidence from one or more of the jurors which was not introduced during the trial. The affidavit of the juror Major is attached to the motion for new trial in support of the allegation of such misconduct. The judgment recites that the court heard the evidence and overruled the motion for new trial. The record does not contain a verification of the facts of this ground of the motion, either by bill of exceptions or a statement of facts.

In order to have this question reviewed it is necessary that such evidence as was introduced should be perpetuated either in the statement of facts or a bill of exceptions reciting the facts, approved by the judge and filed during the term. We take the record as it is made as being correct. The affidavit of the juror is not evidence unless it was introduced as such on the trial of the motion. Had the evidence been approved by the judge in a statement of facts or bill of exceptions and properly filed it would have presented the question for revision. The affidavit attached to the motion is but a pleading which authorizes the introduction of supporting evidence. It is not evidence within itself, and in order to constitute it evidence it should have been introduced as such on trial of the motion and shown to have been so introduced in one of the ways specified. This has been the rule under the authorities and decisions of this court. Sharp v. State,71 Tex. Crim. 633. A great many cases could be cited to the same effect but we deem it unnecessary, but cite Reyes v. State,81 Tex. Crim. 588, 196 S.W. Rep., 532, for a long list of such cases.

The judgment recites that evidence was heard and the motion overruled. What that evidence was is not shown in any way in the record that is before us, therefore we can not review the question suggested by the affidavit. The evidence may not have supported the affidavit or pleading. The court in the judgment found it insufficient for that purpose and overruled the motion.

The motion for rehearing is therefore overruled.

Overruled.