on appelant’s motion for rehearing
DAVIDSON, Judge, dissenting.I cannot agree to the affirmance of this case, and respectfully enter my dissent.
There is no question but that a motion for a new trial alleging jury misconduct based upon the contention that the jury, during deliberations, received other and new evidence should be sworn to by the defendant and accompanied by the affidavit of some member of the jury attesting such misconduct. Authorities, including those cited by my brethren, so hold. Nor is there any challenge to the correctness of the rule that a trial court is not required to entertain a motion for a new trial that does not comply with the rule stated or to permit the introduction of evidence in support of the allegations of the motion. These rules, however, have been established by judicial interpretation. There is no statute that expressly so provides. Vowell v. State, 156 Texas Cr. R. 493, 244 S.W. 2d 214; Fielden v. State, 152 Texas Cr. R. 597, 216 S.W. 2d 198; Moore v. State, 155 Texas Cr. R. 147, 232 S.W. 2d 711.
In my opinion, the rules stated are neither applicable nor controlling here, for the trial court did not overrule appellant’s motion for a new trial because of a non-compliance with the requirements stated but, to the contrary, permitted appellant to introduce testimony both by affidavit and the oral testimony of the jurors who tried the case.
The testimony so heard is before us as a part of the record in this case.
*220The motion for a new trial was overruled after the trial court heard the evidence adduced thereon. The order overruling the motion for a new trial so certifies.
No other interpretation may be given to the trial court’s action than that he waived the necessity of a sworn motion and accompanying affidavits and elected to permit the introduction of testimony on the allegations of the motion as it was presented to him.
Because the motion for a new trial was not properly sworn to and accompanied by the supporting affidavit or affidavits of the jurors, my brethren refuse to consider the question of jury misconduct as alleged in the motion for new trial and upon which evidence was adduced, or to review the trial court’s ruling thereon.
What my brethren hold, then, is that (a) a trial court is without power or authority to waive the requirements of a sworn motion and accompanying affidavits touching jury misconduct occurring in the jury room; (b) that when a trial court waives or attempts to waive such requirements, his action in so doing is not binding on this court; and (c) that this court will, itself, irrespective of the trial court’s waiver and consideration of the motion, require the defendant to comply with the requirements of a sworn motion and accompanying affidavits in order to preserve for review of this court the question of jury misconduct occurring in the jury room.
I cannot subscribe to such a rule. To my mind, it is not only legally unsound but basically unfair.
In the first place, trial courts are clothed with certain inherent powers which are known as discretionary powers and are defined as “the option which a judge may exercise either to do or not to do that which is proposed to him that he shall do; choosing between the doing and not doing of a thing, the doing of which cannot be denounced as an absolute right of the party asking it to be done; the exercise of the right legally to determine between two or more courses of action.” 27 Corpus Juris Secumdum, Discretion, p. 135; Koll v. State, 143 Texas Cr. 104, 157 S.W. 2d 377.
Under the definition stated, it is apparent that when the trial court in the instant case elected not to require appellant to comply strictly with the rules touching sworn pleading and *221affidavits to a motion for new trial he was exercising his judicial discretion — that is, his “option ... to do or not to do that which is proposed to him that he shall do,” in other words, to entertain the motion as presented to him.
In the exercise of that discretion the trial court, here, waived strict compliance with the rules mentioned and his ruling was clearly an exercise of judicial discretion.
In reviewing acts involving the exercise of judicial discretion this court may go no further than to determine whether the trial court has abused that right. This court is primarily a court of review. We do not have the power to direct a trial court’s ruling in discretionary matters or to say to a trial court that he cannot waive the requirements of sworn motion and accompanying affidavit to a motion for a new trial. Our review of a trial court’s ruling upon questions in which he has a' discretion is to determine if there has been an abuse of that discretion.
In its final analysis, then, what my brethren hold is this:
Although the trial court entertained and heard the motion for a new trial, permitted the introduction of evidence touching the fact issues presented by the motion, and rendered his decision upon the testimony so presented, this court will not review that ruling because the motion for new trial was not sworn to by the appellant and was not accompanied by an affidavit of a member of the jury supporting the ground of the motion. I cannot agree to such a holding.
It is my opinion that the trial court had the inherent power to waive the formalities of a sworn motion and accompanying affidavits and to hear and entertain the motion so presented. The right to so waive was a function entirely of the trial court.
I am of the further opinion that when a trial court waives such formalities, hears the motion and the evidence adduced, and renders judgment thereon, this court has no authority to go behind that order and say that the trial court was powerless to consider the motion for a new trial in the first instance.
In my opinion, this court is here restricted to a review of the correctness of the trial court’s order in overruling the motion for a new trial in the light of the evidence adduced therein.
*222The evidence adduced upon the hearing of the motion for a new trial overwhelmingly shows that the jury, during their deliberations, received other, additional, and new evidence to appellant’s injury and hurt in the penalty assessed against him, in violation of the provisions of Sec. 7 of Art. 753, C.C.P.
Under the mandatory provisions of the aforesaid statute, this judgment should be reversed and the cause remanded.