East v. State

OPINION

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant insists that we erred in our original opinion in refusing to consider his ground of error # IV, in which he complained of the court’s refusal to grant a new trial because of alleged jury misconduct.

He concedes that the records of the proceedings on the hearing of the motion were not included in the record on appeal, and requests this court to issue its writ of certio-rari directing the trial court to complete the record on appeal by certifying such proceedings to this court.

In our original opinion we upheld the court’s action in refusing appellant permission to file the additional record, because no written designation of the matter to be included therein had been made by appellant, as required by Art. 40.09, subd. 2, supra, and the record on file had been approved by him.

Under such facts we will not direct the trial court, by writ of certiorari, to do that which we correctly held on original submission he did not err in refusing to do.

*417Our conclusion in Clewis v. State, 415 S.W.2d 654, cited by appellant, to accept the belated entry and filing of a trial court’s findings in passing upon the admission of a written confession under the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is not here applicable.

Remaining convinced that a correct disposition was made of the case on original submission, the motion for rehearing is overruled.