When the order and judgment overruling a motion for new trial recites that the court heard evidence, and such evidence is not preserved or here presented by statement of facts or bill of exceptions properly filed during term time, this court uniformly holds to the theory that the action of the trial court was correct. If the appellant be not satisfied that such evidence supports the conclusion reached by the lower court, he should bring it either by statement of facts or bill of exceptions filed during term time, before the appellate court for review. In the instant case no statement of facts or bill of exceptions relating to the extraneous matter, filed during term time, appears in the record. Nothwithstanding *Page 564 the fact that affidavit was attached to the motion for new trial, the judgment overruling same reciting that the court heard evidence, justifies this court in upholding the action of the lower court in declining to grant said motion. Lopez v. State, 84 Tex.Crim. Rep.; also Trazmond Crouchett v. State, opinion this day handed down. In Washington v. State,86 Tex. Crim. 652, we think we went too far in holding it necessary that the State traverse in terms the motion for new trial when accompanied by supporting affidavits, and in so far as said case contravenes what is now said, same will be overruled.
The motion for rehearing will be overruled.
Overruled.