
    Kelly Giacona and Tony Giacona v. The State.
    No. 20,658.
    Delivered December 6, 1939.
    Rehearing Denied January 17, 1940.
    
      The opinion states the case.
    
      Jno. R. Francis and P. V. Myers, both of Houston, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for eight years.

One question is presented for review. Appellants based their amended motion for new trial on newly discovered evidence, and attached to said motion the affidavit of a witness whose testimony they claimed to be newly discovered and material. The order of the court overruling the amended motion for new trial recites that evidence was heard thereon. No evidence is brought before this Court, either by bill of exception or statement of facts. When the order of the court overruling the motion for new trial recites that evidence was heard it will not be presumed on appeal that the affidavits attached to the motion were considered, or that they were alone considered. Where the record indicates that the court heard evidence on the issue, this Court must presume that the court’s action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S. W. (2d) 863. Applying this rule to the instant case, we must presume that the court’s action in overruling the amended motion for new trial was correct.

The judgment is 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.

BEAUCHAMP, Judge.

In the motion filed by appellants in this cause, no questions are raised for consideration by the Court. It is stated that in the event a rehearing is granted, an additional brief will be filed setting up grounds for a rehearing, but the motion contains no intimation of what these grounds will be. The proper time for the appellants to have filed their brief was before the submission of the motion for rehearing. Nothing is placed before this Court for consideration, and the motion is accordingly overruled.  