
    GONZALES v. STATE.
    (No. 6414.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.)
    I. Criminal law &wkey;>l099(5) — Statement of facts in support of new trial motion must be filed below.
    A statement of tbe facts beard by tbe lower court in support of tbe motion for new trial cannot be considered on appeal, if it was not filed during term time in court below.
    
      Z Affidavits &wkey;>5 — Affidavit for new trial sworn to before defendant’s attorney cannot be considered.
    Affidavits in support of a motion for new trial in a criminal case, wbicb were sworn to before tbe attorney for accused, cannot be considered.
    3. Criminal law &wkey;>957(2) — Juror cannot impeach verdict by stating he consented against his judgment.
    A juror cannot impeacb a verdict of conviction by stating that be did not think tbe evidence sufficient, or that be yielded because some other juror was anxious to be discharged, or was overpersuaded by tbe arguments of other jurors.
    4. Criminal law <&wkey;4H9(5) — Reference by jurors to conviction of codefendant held not shown to be prejudicial.
    Evidence that two jurors stated that a co-defendant bad been convicted and given two years is not shown to be so prejudicial as to require reversal of tbe conviction, where there is no testimony as to tbe stage in tbe deliberations at wbicb tbe statement was made, and no showing that the conviction of tbe eode-fendant was not in evidence.
    Appeal from Criminal District Court, Nue-ces County; Walter P. Timón, Judge.
    Manuel Gonzales was convicted of theft of a horse, and be appeals.
    Affirmed.
    E. L. Coleman, of Corpus Christi, for appellant.
    R. G. Storey, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted in tbe criminal district court of Nueces county of theft of a horse, and his punishment fixed at two years in tbe penitentiary.

Tbe ease is before us without a statement of facts. The trial term of tbe court below ended May 18,1921, and the transcript on appeal was filed in this court on June 18, 1921. On tbe same day there was also filed what is styled appellant’s motion to file record. Prom the contents of said motion we are unable to determine that reference is therein made to the statement of the facts heard by the lower court upon the presentation of the motion for new trial, or to the statement of facts heard by the jury upon appellant’s triál herein. The statement of the facts heard by the lower court in support of the motion for new trial was not filed during term time in the court below, and for that reason could not be considered by us; but, inasmuch as substantially the same facts appear in a bill of exceptions approved and duly filed, appellant loses nothing by a failure to have us consider said statement of facts. If reference is intended in said motion to a statement of the facts adduced on the trial, no copy of such statement accompanies the motion, and if granted there would be no statement of the facts before us.

But one question is raised, which is that after their retirement to deliberate on this case the jury received other evidence. We may observe that the affidavits evidencing such facts and attached to the motion for new trial cannot be considered by us because same were sworn to before appellant’s counsel as a notary. Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567; Branch’s Ann. P. C. § 194, and authorities cited; Hall v. State, 79 Tex. Cr. R. 463, 185 S. W. 574. As shown, however, by the bill of exceptions, the juror Hall gave oral testimony upon the hearing of the motion for new trial; most of said testimony being along lines which we have often held insufficient to impeach the verdict of a jury.

One who sat on a jury may not be heard, after verdict, to say that he did not think the evidence sufficient, or that he yielded his views in favor of the accused because some other juror was anxious to be discharged, or' that he was overpersuaded by the arguments of other jurors, etc. Said juror did testify that two jurors in the instant ease also sat upon the trial of a companion case, and that they said that the other man had gotten two years and appellant ought to get ten. Nothing appears in this record to show at what time of the jury’s deliberation such statements were made, whether before or after a verdict had been agreed upon, or that the punishment was enhanced, or that the record was bare of evidence showing the fact of the conviction of appellant’s eode-fenda'nt, or that there was reference to his punishment made in an improper manner. The other party referred to was tried on one day and convicted, and appellant was tried and convicted the next day. The burden of proof is upon the accused, in seeking advantage of a claimed error of the kind mentioned, to bring himself strictly within the rules, and he must show that the matter spoken of in the jury room was not related to or supported by any facts given in testimony upon the trial. This was not done in the instant case.

Upon another view of the matter, we call attention to the fact that in Morrison’s Case, 39 Tex. Cr. R. 519, 47 S. W. 369, we held that the mere fact that one juror stated to others that the accused had been previously convicted was not such error as to call for a new trial; so in Ray’s Case, 35 Tex. Cr. R. 354, 33 S. W. 869; and if reference to appellant’s previous conviction be not per se prejudicial, we cannot see the injury of reference to the conviction of a companion.

Appellant not seeming to have brought himself within any rule requiring a reversal, the judgment of the trial court will be affirmed. 
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