(dissenting).
The majority reverses this conviction because the State “injected” the issue of appellant’s character into the case.
As noted in the majority opinion the witness Stribling testified that she knew the appellant; that he visited in her home; that he helped her to do “anything I asked him to do; ” that she had never known the appellant to beat up her daughter (the deceased) or use any force or violence on the deceased; and that she had never known the appellant “to threaten to kill her or harm” the deceased.
I would hold that these statements by the witness placed her testimony within the rule of Childs v. State, 491 S.W.2d 907, 908-909 (Tex.Cr.App.1973) where this Court unanimously held that it is the entire tenor of a witness’s testimony — and not the use of “magic words” — which makes the witness a character witness. It seems clear that the witness was attempting to testify in support of the appellant’s character. Certainly her testimony in support of his character was made more forceful by the fact that she was the mother of the deceased. Clearly, the State was justified in impeaching the witness by the use of “have you heard” questions. See and compare Howard v. State, 505 S.W.2d 306, 310-311 (Tex.Cr.App.1974); Hurd v. State, 513 S.W.2d 936, 945 (Tex.Cr.App.1974), and Walker v. State, 501 S.W.2d 912, 915 (Tex.Cr.App.1973).
Moreover, since the witness answered all of the questions negatively, we should apply the rule announced in Sensabaugh v. State, 426 S.W.2d 224, 227 (Tex.Cr.App.1968) and reaffirmed in Wallace v. State, 501 S.W.2d 883, 885 (Tex.Cr.App.1973). In Sensabaugh it was held that:
“The Court of Criminal Appeals rarely reverses a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause a reversal the question must be obviously harmful to the defendant.”
In Wallace, we applied this rule to character witnesses. There, as in the instant case, there was nothing in the record which showed bad faith by the prosecutor in asking a “have you heard” question. We should hold, as we did in Wallace, that the mere asking of such questions is not sufficient to require reversal.
We should also hold that the appellant waived his right to complain of these questions. In cross-examining the witness the prosecutor developed the following testimony without objection:
“Q And so, these questions that you have been answering for Defense Counsel, do you mean to say by your answers that Charles Els is a man of good character?
“A Well, I think so.
*17“Q And that is what you meant when you answered those questions of Defense Counsel?
“A I never seen him drunk. I have saw him drink a beer, but I have never seen him drunk or anything.
“Q So, when you were answering the questions of the Defense Lawyer— and I will have them read back to you if it is necessary — did you mean to imply that the Defendant, as far as you know, is a man of good character and reputation ?
“A I thought so, yes, sir. I still say so. “Q And that is what you meant when you were answering this lawyer’s questions ?
“A Yes.
“Q Let me test your knowledge of his character and reputation.” (Emphasis added)
At this point appellant objected. By allowing the witness to testify without objection that her testimony was intended to signify her endorsement of the appellant’s character and reputation, the appellant waived his right to complain that the witness was not a character witness. See Mullenix v. State, 499 S.W.2d 330, 331 (Tex.Cr.App.1973); Blanco v. State, 471 S.W.2d 70, 71 (Tex.Cr.App.1971); see also Piraino v. State, 415 S.W.2d 416, 417 (Tex.Cr.App.1967); Holtzclaw v. State, 451 S.W.2d 505, 506-507 (Tex.Cr.App.1970).
Appellant also waived any error he might now urge when he took the stand and admitted the facts of each arrest upon which a “have you heard” question was based. See Ware v. State, 467 S.W.2d 256, 259 (Tex.Cr.App.1971); Cowles v. State, 510 S.W.2d 608, 610 (Tex.Cr.App.1974). I would hold that the “have you heard” questions were proper and would overrule appellant’s last six grounds of error.1
Because of my disposition of these grounds of error, it seems appropriate that I discuss appellant’s remaining grounds as well.
In his first ground of error, appellant contends the trial court erred in denying his motion for new trial which alleged jury misconduct. Appellant contends that jury misconduct occurred when juror Boiler allegedly received other evidence during deliberations at the punishment stage of the trial. Appellant specifically argues that a statement was made in the jury room that if the jury could not agree on the punishment, the court would assess the maximum punishment. Appellant contends that juror Boiler relied on this information and as a result changed his vote from ten years’ probated to ten years’ confinement.
Although other allegations of jury misconduct were made in appellant’s motion for new trial, this particular allegation was not made therein. Furthermore, appellant filed a total of six motions for new trial over a period exceeding two months. Between his third and fourth amended motions for new trial, a period in excess of twenty days elapsed.
Article 40.05, Vernon’s Ann.C.C.P., governs motions for new trial. It provides in part:
“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted upon within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined *18by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.” (Emphasis added)
The statute is mandatory in requiring that any original or amended motion for new trial be determined within twenty days.2 This clearly contrasts with the liberal statutory language granting the trial court wide discretion in allowing extensions of time for filing or amending such motions.
But this liberality clearly does not apply to the time allowed for determining motions for new trial. As Presiding Judge Woodley stated in St. Jules v. State, 438 S.W.2d 568, 570 (Tex.Cr.App.1969):
“The statute does not authorize an extension of the time in which a motion for new trial shall be determined.”
Accord: Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961); Jones v. State, 501 S.W.2d 677, 679 (Tex.Cr.App.1973).
Clearly, the third amended motion was overruled by operation of law. Jones v. State, supra. As to the amended motions filed after the third amended motion was overruled by operation of law, it necessarily follows that they were void ab initio, since they comprised an attempt to amend a motion which was no longer before the court.
Moreover, it is irrelevant that the trial court subsequently conducted a hearing and considered the issue now presented for review. Jones v. State, supra.3
Nor does the holding in Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975), require a different result. In that case, we held (1) that the trial court could in its discretion add materials to the record after the record had been approved, and (2) that the court should then make a supplemental approval of the record.
The construction of Guzman v. State, supra, should not be so broad as to extend to the situation at bar; instead, it should be narrowly construed and limited to the facts there presented. The holding in Guzman v. State, supra, allows the trial judge limited discretion in supplementally approving the record. Such a procedure was permitted where there was no express statutory proscription. See Art. 40.09, V.A.C.C.P. However, in regard to motions for new trial, Art. 40.05, V.A.C.C.P., is explicit in providing that it “shall be determined by the court within twenty days after the filing of the original or amended motion.” As noted earlier, this had long been interpreted to mean that the motion for new trial is overruled by operation of law when not acted upon within twenty days. E. g., Jones v. State, supra, and cases there cited.
The underlying rationale in maintaining a definite time period for motions for new trial as distinguished from a supplemental approval of the record in the discretion of the trial judge is that motions for new trial are primarily directed to producing evidence that has not been developed in the trial court. This is evidenced in the special commentary following Art. 40.09, V.A.C. C.P., by now Presiding Judge Onion: *19This being so, it follows that a reasonable yet definite time period must be established and maintained in order to conclude the evidence and begin the appellate process. It is, indeed, an unwarranted conclusion to say that because the trial judge, in his discretion, can re-open the record and include matters which were incorporated by reference at trial, that the trial judge, in his discretion, could do that which the statute expressly denies him the authority to do, i. e., have a hearing on an amended motion for new trial after the motion is overruled by operation of law.
*18“It has been suggested that this procedure [the trial court’s granting a new trial after reviewing the briefs, Art. 40.-09(12)] eliminates the necessity for motions for new trial, but if motions for new trial had not been retained there would have been no hearing to produce and preserve testimony as to jury misconduct, newly discovered evidence, etc.”
*19The situation involved in the case at bar and the one in Guzman v. State, supra, are completely distinguishable. Our holding in Guzman v. State, supra, should not be read to include late-held hearings for motions for new trial.
Appellant’s first ground of error should be overruled.
Appellant next challenges the admission into evidence of a photograph of the deceased. This issue is foreclosed by our discussion in Martin v. State, 475 S.W.2d 265, 267 — 268 (Tex.Cr.App.1972). See also Tezeno v. State, 484 S.W.2d 374, 384-385 (Tex.Cr.App.1972). Nor is it of significance that the photograph was colored rather than black-and-white. Terry v. State, 491 S.W.2d 161, 163 (Tex.Cr.App.1973). No error is shown.
Appellant’s third ground alleges that the evidence is insufficient to show malice.
The record reflects that Houston Police Officer R. 0. Olive went to appellant’s house on the date in question in response to a call; he first encountered the appellant, who stated that the deceased, Oleta Johnson, had shot herself. Inside, Officer Olive found the body of the deceased lying on a bed.
The inculpatory portion of a voluntary statement of the appellant was introduced in evidence by the State. In it appellant admitted shooting the deceased, who was his girlfriend, after drinking and arguing with her.
The appellant took the stand and contended that the shooting was an accident. He stated that he thought the hammer would land on an empty cylinder and make a clicking sound which would frighten the deceased. He added that he did not aim at the deceased, but that she moved suddenly just as he fired. The appellant’s attorney then read to the jury the exculpatory parts of the appellant’s statements, which agreed with this version of the incident.
The appellant also stated generally that he had never threatened or beaten the deceased, and specifically that he had never threatened the life of the deceased. The testimony of several of the appellant’s witnesses also tended to show a lack of threats and physical intimidation by the appellant.
In rebuttal, the State called on Denard Campbell, who testified that the appellant had threatened to kill the deceased. He also testified that prior to her death the deceased had shown him bruises on her leg and arms which she said were the result of being beaten up by her boyfriend, Charles. The appellant took the stand and disputed the truth of these statements.
The jury has exclusive authority to judge the credibility of the witnesses and the weight to be given their testimony. Here, there was sufficient evidence to support their verdict. Compare Washington v. State, 484 S.W.2d 721, 723 (Tex.Cr.App.1972). I would overrule appellant’s third ground as well.
The judgment should be affirmed.
. The majority’s opinion turns on one crucially important sentence: “The State . may not transform, by its own questions, a witness who is not a character witness into one in order to be able to ask ‘have you heard’ questions.” Ante, at page 14 of the Court’s opinion. This sweeping legal principle is made without the support of any legal authority whatsoever.
. Accordingly, we have frequently held that where such motions are not acted upon or amended within that twenty day period, they are overruled by operation of law. E. g., Chappell v. State, 519 S.W.2d 452, 453 (Tex.Cr.App.1974).
. To the extent that it is inconsistent with this opinion and the cases cited, the holding in Atkinson v. State, 164 Tex.Cr.R. 421, 299 S.W.2d 951 (1957), should be overruled.