
    GUTIERREZ v. STATE.
    (No. 8832.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied June 3, 1925.)
    I. Criminal law <&wkey;I099(5) — Statement of facts not considered, if filed .too late.
    Statement of facts, filed after adjournment of trial court, will not be considered.
    ¿^Criminal law <®=5l 144(18) — Absence of statement of facts creates presumption that frial court acted correctly.
    The Court of Criminal Appeals will, in the absence of a statement of facts, presume that the trial court acted correctly in overruling motion for a new trial.
    3. Criminal law <&wkey;396(2) — Whole of examining trial testimony admissible by state, where accused introduced part.
    Where, on a trial for assault with intent to murder, the defense sought to impeach a witness by introducing excerpts from his examining trial testimony and from a written statement made on the night of the shooting, under Vernon’s Ann. Code Cr. Proc. 1916, art. 811, state may introduce whole of that testimony and statement as explanatory of such excerpts.
    On Motion for Rehearing.
    4. Criminal law <&wkey;857(2) — Comment in jury room regarding accused held harmless error.
    Where the alleged misconduct of the jury consisted in referring, during deliberation, to a former conviction of accused, and whether sentence then served would be deducted, held such remarks were casual, not constituting reversible error, as testimony of jurors satisfied the court that the verdict had not been influenced thereby.'
    5. Criminal law <&wkey;l 160 — Trial court’s decision on motion for rehearing final, unless in abuse of discretion.
    Where, on a motion for new trial, conflicting evidence was introduced, the judgment of ■the trial court will not be disturbed, unless there was an abuse of discretionary powers.
    Commissioners’ Decision.
    Appeal from District Court, El Paso County; W. D. 1-Iowe, Judge.
    Eduardo Gutierrez was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    See, also, 96 Tex. Cr. R. 327, 257 S. W. 889.
    E. B. Elfers, of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   B-ERRV, J.

Appellant was convicted in the district court of El Paso county for the offense of assault with intent to murder, and his punishment assessed fit five years’ confinement in the penitentiary.

There are two bills ,of exceptions in the record. The first complains of the action of the court in overruling appellant’s motion for a new trial because of certain alleged misconduct of the jury. The record in- this case shows that the court adjourned on the 4th 'day of April, 1924, and the statement of facts on the motion for new trial was not filed, according to the file mark thereon, in, the district court of El Paso county until the 5th day of April, 1924, or one day after the court had adjourned. Under this state of the record the statement of facts cannot be considered, and this court will presume, that the trial court acted correctly in overruling the motion for a new trial.

By bill of exception No. 2 complaint is made of the action of the trial court in permitting the state to introduce in evidence the whole of the examining trial testimony of the witness Augustine Bustamente and the whole of the written statement made by said witness to the county attorney on the night of the shooting. The bill of exception shows that the defendant, for the purpose of impeaching said witness, offered in evidence and read to the jury certain excerpts and statements from the examining trial testimony of said witness, and also from the written statement made by said witness to the county attorney on the night of the shooting. We have very carefully examined the examining trial testimony and the written statement introduced in evidence, and have reached the conclusion that it was entirely proper for the court to admit all of the testimony of the witness given on the examining trial, and also his 'full statement to the county attorney, because same were germane to that portion of said testimony and said statement that was introduced in evidence by the appellant. Article 811, Vernon’s Oode of Criminal Procedure, and authorities there cited.

, Binding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, has properly presented to thi$ court a supplemental transcript showing that the term of court was actually extended to include the 5th day' of April, 1924, and it is proper to consider appellant’s complaint based on the alleged misconduct of the jury.

Appellant, in his motion for new trial, alleges that during their deliberations the jury received and heard other testimony than that adduced upon the trial of the case, in that, while a number of jurors were voting not guilty, other jurors, who believed this defendant guilty, referred to and stated as a fact that this defendant had been previously convicted, and that, after said jurors had all agreed to a verdict of guilty, and while they were deliberating on the punishment to be assessed, several of said jurors voted for confinement for a term of two years, while others voted, for more severe punishment, that one or more of the jurors favoring the higher penalty stated a's a fact that this defendant had already served more than two years’ imprisonment for which he would get credit on any term of imprisonment assessed on the present trial, and that, if this jury assessed a less term than five years, and the time already served were deducted, the punishment would be wholly inadequate.

On the hearing of this motion, ten of the jurors testified. We have carefully considered this testimony and cannot agree with appellant’s contention that the court erred in overruling his motion for new trial. One of the jurors testified that it was mentioned in the jury room that the appellant had been in jail for two years more or less and that any sentence that he got would be taken off his sentence. The juror further testified that we dismissed that idea entirely and gave him a sentence of five years, not being sure that he would get credit, or would not get credit, for the time he had served in jail. This juror further testified that the jury did not discuss or did not talk over that part of the consideration at all, or did not pay any attention to it, and that it was a mere casual remark. The other jurors testified to practically the same matter. Tn each instance, the testimony shows that the matter was merely mentioned and each juror testifying negatives the idea-that there was any general discussion of the matter or that it in anywise influenced the verdict of any juror.

It has been held by this court in the case of Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812, that the mere mention in the jury room of defendant’s failure to testify, if promptly rebuked and the jurors informed that it is not to be considered, is no ground for reversal. It has also been held that a bare allusion to defendant’s failure to testify in the jury room, which is immediately suppressed, will not cause the judgment of conviction to be set aside. See Branch’s P. C. p. 293, for authorities supporting this proposition. On the question of the jury’s reference to a former conviction, it has been held that, when the testimony supports the verdict, and the charge properly submits the case, a verdict ought not to be set aside for a casual mention of a former conviction, and that in no case should it be set aside where the case has been tried according to law, unless such reference or discussion in the opinion of the court did or might have prejudiced appellant’s case. Smith v. State, 52 Tex. Cr. R. 350, 106 S. W. 1161, 15 Ann. Cas. 357.

Under the reasoning in those cases, we are led to the conclusion that a mere mention of a matter in the jury room, such as that raised by appellant in this case, does not constitute reversible etror. It has been uniformly held by this court that matters of this character are largely within the discretion of the trial court, and when he hears the evidence, and when the evidence is ihore or less conflicting as to what occurred, and in the absence of an abuse of that discretion, his judgment thereon will not be disturbed..

Applying this rule to the matter before us, we are of the opinion that no such abuse of the trial court’s discretion is shown as would warrant us in reversing the case. It is our opinion that the motion for rehearing should be overruled.

PER OURIAM. 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. 
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