
    Jessie Oscar Baker, Jr. v. State.
    No. 30,810.
    June 17, 1959.
    Motion for Rehearing Overruled October 14, 1959.
    
      Lumpkin, Watson and Dunlap (Dean C. Watson of Counsel) Amarillo, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   DAVIDSON, Judge.

This is an appeal from a driving-while-intoxicated conviction, with punishment assessed at three days in jail and a fine of $50.

We are asked to reverse this conviction for the failure of the trial court to grant a new trial because of argument of state’s counsel and because of jury misconduct, during deliberations, in the receipt of other and new evidence.

The complaint as to argument of state’s counsel is not preserved by a bill of exception. The entire matter is sought to be presented here by the motion for new trial and the evidence heard thereon.

No statement of facts upon the merits of the case accompanies this record.

Being preserved neither by bill of exception nor in a statement of facts, the complaint as to argument is not therefore before us for determination.

In the absence of a statement of facts, we are unable to determine whether the alleged statements made and the evidence given during deliberations of the jury constituted, in fact, new and other testimony. Phillips v. State, 83 Texas Cr. Rep. 16, 200 S.W. 1091, and Pritchard v. State, 82 Texas Cr. Rep. 219, 199 S.W. 292.

No error appearing, the judgment is affirmed.  