
    MARTINEZ v. STATE.
    (No. 12269.)
    Court of Criminal Appeals of Texas.
    Jan. 16,1929.
    E. W. McKay, of Brownsville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Assault with intent to murder is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

The record is here without a statement of facts and bills of exceptions.

The only point presented for review is the overruling of the motion for new trial. In the motion there is an averment that the jury had separated after retirement and before the verdict, and that one of the jurors during the separation had talked to an outsider. An affidavit is attached to the motion' supporting the averment. In the judgment overruling the motion for new trial, however, it is recited that evidence was heard. In the absence of the evidence that was adduced on the hearing of the motion, the presumption is indulged that the facts before the trial court at the time the motion was overruled were such as authorized the action taken.

The judgment is affirmed.  