Hoppe v. State

In the motion for rehearing, counsel for the appellant reiterates the contention made on the original hearing, namely, that the affidavit for the search *Page 445 warrant was insufficient to warrant the search and the reception of the evidence of the result of the search. Our review of the matter leaves us of the opinion that the conclusion reached and stated in the original opinion reflects the proper disposition of the points in question.

In the amended motion for new trial are averments claiming that the jury in its deliberations made remarks indicating that the failure of the appellant to testify in his own behalf was considered as a circumstance against him, contrary to article 710, C. C. P., 1925. The testimony of the jurors touching the occurrence during their deliberation is not brought up for review. The only evidence found as supporting the averments of the motion is the ex parte affidavit of L. A. Mayer, a member of the jury. There is no bill of exception touching the matter showing the action of the court further than a formal order overruling the motion for new trial. In the order there is a statement that on the hearing of the motion for new trial the court heard evidence. Under such circumstances, the presumption is indulged that the evidence heard by the court justified his action in overruling the point made. The matter has been discussed in numerous cases. See Tindale v. State,53 S.W.2d 66; Sanders v. State, 117 Tex.Crim. Rep.,36 S.W.2d 1032; Stapler v. State, 120 Tex.Crim. Rep.,47 S.W.2d 837; Sykes v. State, 109 Tex.Crim. Rep.; Crouchette v. State, 99 Tex.Crim. Rep..

The motion is overruled.

Overruled.