In his motion for rehearing appellant calls attention to the fact that we overlooked his bills of exception relating to objections to testimony tending to show that he had a bad reputation. It is observed that the index to the transcript sets forth no numbered bills of exception. However, an examination of the transcript discloses that appellant prepared and filed several bills of exception.
Appellant contends that his bill of exception relating to the testimony of W. E. Melton reflects reversible error. It is recited in said bill that the witness testified, over appellant's objection, that he had arrested appellant four times for different offenses; and that in several of said cases appellant had appealed from the city court to the county court. The court qualified the bill of exception as follows:
"In this case the defendant pleaded guilty to an indictment charging him with the offense of burglary and filed an application for a suspended sentence.
"At the close of the testimony in chief offered by the State, the defendant placed on the witness stand five witnesses who testified on direct examination by the defendant that the general reputation of the defendant in the community in which he resided for being a peaceable and law abiding citizen was good. On cross-examination these character witnesses were asked by the district attorney whether or not they had heard *Page 618 or knew that the defendant had been arrested or paid fines for various misdemeanor offenses.
"The defendant objected to said questions set out in this bill. The Court overruled the objections and admitted said evidence as tending to test the knowledge of the character witnesses as to the defendant's general reputation. At the conclusion of the testimony of the character witnesses the defendant himself took the witness stand in his own behalf and on direct examination told the jury that he had been arrested and fined for various misdemeanor offenses, and made a detailed explanation of the character of each offense for which he had been arrested and fined. The defendant also explained in detail on this examination the cause of a scar which appeared on his neck. The district attorney was permitted by the Court to cross-examine the defendant on these matters, over defendant's objection."
Appellant accepted said qualification; and, under the circumstances, is bound thereby. We quote from 4 Tex. Jur., page 279, as follows:
"Moreover, the appellate court will presume that qualifications in a duly certified bill were made with the consent of the accused or his counsel unless the contrary appears over the certificate of the trial judge, and it will accept as correct qualifications to which no objections are filed or no exception taken, in the court below, or to which objection or exception is not verified by the trial court, and will not consult the statement of facts or other parts of the record to verify the statements therein."
In support of the text many authorities are cited, among them being Gonzales v. State, 18 S.W.2d 618. As qualified, the bill fails to reflect reversible error.
Appellant says that we should have passed on the question raised by the averment in his motion for new trial to the effect that he had a valid defense to the charge of burglary. The order of the court overruling the motion recites that evidence was heard. The evidence heard by the trial judge is not brought forward. Under the circumstances, this court must presume that the trial court acted upon evidence that was sufficient to justify his action in overruling the motion. Garza v. State, 88 S.W.2d 113, and authorities cited.
We think the question discussed in the original opinion was correctly decided.
The motion for rehearing is overruled.
Overruled. *Page 619
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.