
    Ex parte BICE.
    (No. 10667.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1927.)
    Habeas corpus <@=>90 — On rehearing after denial of writ, defendant held not entitled to have ex parte affidavits considered as supplementing facts theretofore considered by agreement.
    On an original application, in Court of Criminal Appeals, for writ of habeas corpus on ground that bail fixed by district judge was excessive, where it was agreed that court should consider statement of facts heard by district court on affidavit alleging insufficient bail on rehearing after denial of writ, relator was not entitled to have additional ex parte affidavits considered in connection with the facts theretofore agreed to, the effect of which would be to amend the statement of facts considered by agreement.
    On motion for rehearing.
    Motion denied.
    
      For former opinion, see 289 S. W. 43.
   HAWKINS, J.

It was agreed between relator and the state that this court should consider the statement of facts heard by the honorable district court of Brazoria county upon the affidavit alleging insufficient bail as the facts before this court upon relator’s original application here for writ of habeas corpus, alleging that the bail fixed by said district court was excessive. By such agreement the said facts became the statement of facts upon which our former opinion was predicated. Relator now files his motion for rehearing, and attaches thereto the ex parte affidavits of three persons, and asks that they be considered in connection with the facts theretofore agreed to. We think this should not be done. It is in effect an effort to amend by ex parte affidavits the statement of facts heretofore considered by agreement. In principle the same question is presented as that considered in McConnell v. State, 85 Tex. Cr. R. 409, 212 S. W. 498; Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380; McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394; Hurd v. State, 99 Tex. Cr. R. 388, 269 S. W. 439. We are not to be understood as holding that, upon the hearing of an original writ of habeas corpus before this court, the facts might not in some instances be presented by both parties by affidavits, where each party has opportunity to so present them, but only as announcing that, in the present case, we think the agreed statement of facts cannot be supplemented by the ex parte affidavits attached to the motion.

The motion for rehearing is overruled.  