Holmes v. State

The appellant was convicted of murder in the District Court of Bowie County and sentenced to ten years' confinement in the penitentiary.

There being no bills of exceptions in the record, this leaves the action of the trial court in overruling the appellant's motion for a new trial, based on the ground of newly discovered evidence, the only question to be reviewed.

The record discloses that the evidence upon which the trial judge based his decision in overruling the motion for new trial is not brought before this court either by a bill of exceptions or statement of facts. The motion for new trial contains averments, and attached to the motion are affidavits supporting the averments which would be considered by this court if the record failed to disclose that the trial court heard other evidence upon the hearing of the motion. It appearing, however, from the order of the trial court overruling the said motion that the court "heard the said motion and the evidence thereon submitted," this court, following the rule laid down in Crouchett v. State, 99 Tex.Crim. Rep., 271 S.W. 99, cannot review the order overruling the motion for new trial in the absence of the evidence which was evidently before the trial court, as shown by said order overruling the motion for new trial. See also Reyes v. State, 81 Tex.Crim. Rep.,196 S.W. 532; Lopez v. State, 84 Tex.Crim. Rep., 208 S.W. 167; Wilson v. State, 271 S.W. 104.

There being nothing more left for the court to review and the facts being amply sufficient to support the verdict of the jury, the judgment will be affirmed.

Affirmed.

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.