
    AGUILAR v. STATE.
    No. 21620.
    Court of Criminal Appeals of Texas.
    May 28, 1941.
    Rehearing Denied Oct. 8, 1941.
    John B. Howard, of El Paso, for appellant.
    Spurgeon E. Bell, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in Ward County for the offense of assault to murder and given two years in the penitentiary, from which he appeals.

We find no bills of exception and no brief in behalf of the appellant presenting his theory of the case. We have carefully examined the record and find the proceedings to be regular. The evidence amply justifies the jury’s verdict. It shows that Helen Cruz, the injured party, and appellant were in a beer and eating joint in or near the town of Grand Falls. They were Mexicans and their conversation with each other was not understood by the witness present. It is revealed, however, that they were sweethearts and while drinking together the appellant pulled a pistol and shot the girl several times. One wound was in the left temple, one in the neck, one in the shoulder and one in the chest. The physician who examined her testified that more than one of these wounds would ordinarily have produced death. The evidence sets forth no defense. The appellant himself did not take the stand and explain away the implication which arises from the circumstances that he intended to take her life.

There is no question of law presented for discussion, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant files a motion for rehearing in which he relies on Pleasant v. State, 137 Tex.Cr.R. 154, 128 S.W.2d 813, for a reversal.

The court submitted assault to murder with and without malice. The verdict is the same as that found in Pleasant’s case. Appellant apparently overlooks the fact that in the case mentioned the court sentenced accused for two years straight, whereas, in the present case he sentenced appellant for not less than one nor more than two years. If any error was committed, it seems to have been in appellant’s favor, of which he can not be heard to complain for the first time in a motion for rehearing.

The motion for rehearing is overruled.  