dissenting.
To the original majority opinion I dissented without written opinion. My dissent was based on returning the cause to the trial court for a hearing on the motion for new trial more than three years after the fact. It was not my intention to dissent to the holding that the offenses of aggravated sexual abuse of a child and of indecency with a child arose in the same transaction, and that the trial court was without authority to authorize a conviction on both counts one and three of the indictment. The Court of Appeals was correct in reforming the judgment as it did. I concur in that part of the majority opinion.
Now on rehearing the majority has added insult to injury. It has “invented” a new procedure, a dangerous new judicial precedent.
The issue in this case is clear cut. If the pleadings for a new trial were adequate, and timely presented, the trial court erred in refusing to hear the motion for new trial and the appellant is entitled to a reversal. If, on the other hand, the pleadings were inadequate as found by the trial court and the Court of Appeals, the appellant is entitled to no relief. To invent a new procedure involving abatement and including a feasibility study or hearing in the trial court to determine if a hearing on the motion for new trial can now be conducted three years after the fact is judicial nonsense. Why do we prolong the delay and the finality of judgment in criminal cases in this manner?
It should be made clear just exactly why appellant’s petition for discretionary review was granted by this Court. The trial court overruled the motion for new trial without a hearing finding that said motion had been untimely filed in view of the earlier notice of appeal, and further finding the motion presented “nothing for hearing.”
The unsworn motion for new trial contained a number of allegations, a number of them general in nature. Three affidavits were attached. The affidavit of juror Gregory related to the allegations of jury misconduct concerning a quotient verdict, discussion of parole laws in the jury room, *663and his (juror’s) conversation with a third person out of the court’s presence.
On appeal, inter alia, appellant complained in his first ground of error of the trial court’s ruling that his right to file the new trial motion was waived because of the previous notice of appeal. He also complained in a second ground of error of the trial court’s ruling that nothing was presented for hearing in light of juror Gregory’s affidavit concerning the three matters set out above.
The Court of Appeals found that appellant was not harmed by the trial court’s ruling as to “waiver” because the decision to overrule the motion for new trial was also based on the fact the motion presented “nothing for hearing” and the grounds of error as to the latter ruling were not waived and he was not prejudiced on appeal. As to the matters of alleged jury misconduct, the Court of Appeals found no error in the overruling of the motion for new trial. As to a third ground of error the Court of Appeals rejected appellant’s contention he was entitled to an evidentiary hearing on his new trial motion as a matter of law. McIntire v. State, 662 S.W.2d 65 (Tex.App. — Corpus Christi 1983).
Appellant’s first three grounds for review corresponded to the first three grounds of error overruled by the Court of Appeals. It was these three grounds of review, and only these upon which this Court granted appellant’s petition for discretionary review.1
With that as a background the record sub judice is examined. On May 10, 1982, the trial jury was chosen. On May 11 and 12, 1982, the guilt stage of the trial was conducted and completed. On May 13, 1982, the jury assessed punishment at the penalty stage of the trial. On the same date the trial judge pronounced judgment and imposed sentence in open court. On May 19, 1982, the court signed a written order appointing Honorable Jeffrey Jones as counsel for appellant, whom the court found to be too poor to employ counsel. The order was entitled “Order Appointing Attorney For Appeal Only” and was filed on May 25, 1982. Jones replaced Honorable Tom Fleming, court-appointed trial counsel. The formal judgment and sentence were “Signed For Entry: May 24, 1982” by the trial judge. Also filed on May 24, 1982 was the pro se handwritten “Notifies Court of His Intention And Desire To Appeal for New Trial.” It was dated May 21, 1982. In such signed but unsworn instrument it was stated that both Jones and Fleming were out of town and were not expected to return until after “time allowing appeal has passed” and it prayed “that the Court will accept the notice.” On June 4, 1982, Attorney Jones filed a “Designation of Record on Appeal” listing 33 items to be included in the appellate record. On June 8,1982, the court heard the said “Designation” and granted the same. It was then on June 11, 1982 that the motion for new trial was filed. It was signed by Attorney Jones, but it (motion) was not sworn to by the appellant or Jones. There were three affidavits attached. Two of these did not relate to jury misconduct. The other affidavit was by John Gregory, a juror at appellant’s trial, which had reference to a statement made to him outside the courtroom by a defense witness, the mention of parole in the jury room, and the averaging of jurors’ votes on punishment. On June 14, 1984, the trial judge entered an order finding the motion for new trial to have been untimely filed in view of the notice of appeal given May 24, 1982, and further finding the motion presented “nothing for hearing.” The motion was overruled.
In one of his grounds of review the appellant complains of the Court of Appeals’ ruling that he was not harmed by the trial *664court’s ruling that the motion in question was untimely in view of the notice of appeal. The basis of the Court of Appeals' ruling was that the motion for new trial was also denied for another reason which was duly considered.
After the granting of the petition for discretionary review, the majority of this Court in its original opinion scolded the trial judge for considering the pro se May 24th “motion” as a notice of appeal, even though the unsworn “motion” did not contain grounds for a new trial,2 and could have been considered as a notice of appeal, see and cf. Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976), and even though appellant’s own counsel considered it as a notice of appeal and thereafter filed a “Declaration of Record on Appeal.” In determining the trial judge erred in considering the new trial motion untimely filed because of the previously filed notice of appeal, the majority cited Ex parte Drewery, 677 S.W.2d 533 (Tex.Cr.App.1984), which was decided two years and two months after the trial court’s ruling.
Prior to September 1, 1981, normally a motion for new trial had to be filed prior to sentence being imposed and notice of appeal was given after sentence was imposed. Article 44.08, V.A.C.C.P.; Ex parte Drewery, supra. As a result of Acts 1981, 67th Leg., p. 814, ch. 291, eff. Sept. 1, 1981, many of our well established procedures were changed. Our present unorderly procedure permits the giving of the notice of appeal, notification of the appeal to the Court of Appeals in other than death penalty cases (Article 44.08, V.A.C.C.P., as amended 1981), and the commencement of the preparation of the appellate record, and at the same time permits a subsequent but timely filing of the motion for new trial to be heard by the trial court. Ex parte Drewery, supra.3 Considering that in view of the new procedures the trial judge in the instant case should not have held the motion for new trial untimely filed, I agree with the Court of Appeals that the trial judge’s action was harmless since the motion for new trial was overruled on another basis which can be considered.
Turning to the question of whether the trial court erred in overruling the motion for new trial because “nothing” was presented, an examination of some authorities are in order.
In Tex.Jur.3rd, Criminal Law, § 3549 (Misconduct of Jury), p. 471, it is stated:
“In order to necessitate an inquiry as to misconduct of the jury, there should be in the motion for new trial specific averment disclosing culpable misconduct. A motion is insufficient if it does not inform the court with respect to the alleged misconduct.”
In § 3539 of the same authority at p. 460 it is written:
“The court may refuse to entertain a motion that is ambiguous, too general, or indefinite. A defendant is not entitled to a hearing on a motion for new trial to develop more facts to show error where none is reflected in the record.”
A motion for new trial is insufficient when it merely expresses thought that misconduct has occurred and seeks to examine the jury to determine the matter, Prince v. State, 254 S.W.2d 1006 (Tex.Cr.App.1953), or merely makes a general allegation the jury discussed facts and matters not in evidence, but it is not alleged that subject was not brought out on trial. Wells v. State, 10 S.W.2d 991 (Tex.Cr.App.1928).
Although the Code of Criminal Procedure has never required that a motion for new trial be verified, case law has long held that without verification a motion for *665new trial based on jury misconduct is insufficient as a pleading, Bearden v. State, 648 S.W.2d 688, 690 (Tex.Cr.App.1983), and its overruling cannot be assigned as error. Hunt v. State, 317 S.W.2d 743 (Tex.Cr.App.1968); 25 Tex.Jur.3rd, Criminal Law, § 3538, pp. 455-456. The motion should be sworn to either by the defendant or his counsel. The motion is normally insufficient if it is signed by counsel but is not sworn to him or the defendant. See 25 Tex.Jur.3rd, Criminal Law, § 3538, p. 456; Martin v. State, 334 S.W.2d 796 (Tex.Cr.App.1960). It has been said such an unverified motion is fatally defective. Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 988 (1941). It presents nothing for review. Pate v. State, 171 Tex.Cr.R. 126, 345 S.W.2d 532 (1961).
In addition to a verified motion for new trial, it is well established that a motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts, or state some reason or excuse for failing to produce the affidavits. Dugard v. State, supra; Procella v. State, 395 S.W.2d 637 (Tex.Cr.App.1965); Mason v. State, 459 S.W.2d 855 (Tex.Cr.App.1970); Howard v. State, 484 S.W.2d 903 (Tex.Cr.App.1972); Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973); Duggard v. State, supra. See also Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83 (1928) (on rehearing); Bearden v. State, supra, at 690.
It is an essential element of the rule that each separate allegation in the motion for new trial based on jury misconduct must be supported by the attached affidavit. Such an affidavit should conform to the rule applicable to affidavits generally. And an affidavit is manifestly insufficient if it consists only of hearsay or conclusions, or is of a vague and inconclusive character. 25 Tex.Jur.3rd, Criminal Law, § 3540, pp. 461-462.
A motion for new trial on the ground of jury misconduct not supported by an affidavit of a juror or another person in a position to know the facts is insufficient as a pleading. Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663 (1954); Clifton v. State, 170 Tex.Cr.R. 245, 339 S.W.2d 902 (1960); Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797 (1962); Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974); Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1980); Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App.1981). And the court is not authorized to consider it. Johnston v. State, 396 S.W.2d 404 (Tex.Cr.App.1965), cert. den. 384 U.S. 1024, 86 S.Ct. 1976, 16 L.Ed.2d 1029. In such situations there is no error in the court’s refusal to hear the testimony of the jurors. Fontenot v. State, 426 S.W.2d 861 (Tex.Cr.App.1968); Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968); Mendoza v. State, 442 S.W.2d 690 (Tex.Cr.App.1969). See also Mason v. State, supra; Lolmaugh v. State, supra.
These requirements result from the policy of the law which is to discourage “fishing expeditions” in an effort to impeach a jury verdict. Prince v. State, 158 Tex.Cr.R. 320, 254 S.W.2d 1006, 1011 (1953); Stephenson v. State, 494 S.W.2d 900, 908-909 (Tex.Cr.App.1973). See also Clark v. State, 163 Tex.Cr.R. 54, 289 S.W.2d 288 (1956); Moore v. State, 160 Tex.Cr.R. 642, 275 S.W.2d 673 (1955); Hicks v. State, 75 Tex.Cr.R. 461, 171 S.W. 755 (Tex.Cr.App.1914).
In Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83, 84, 85 (1928), it was stated:
“[T]o hold otherwise would authorize in every case the making of general indefinite motions for new trial upon information and belief without specific averment of fact or supporting affidavit, and in such form as that same would not support prosecutions for perjury, which would compel trial courts to order process for any and all parties that might be desired and to enable the parties thus convicted to go upon limitless fishing expeditions.”
See also Bearden v. State, 648 S.W.2d 688 (Tex.Cr.App.1983).
In Cartwright v. State, 612 S.W.2d 609 (Tex.Cr.App.1981), a panel decision by this Court, it was held a juror’s affidavit need not be considered when it is not attached to *666nor incorporated in a properly verified motion for new trial based on jury misconduct. Cartwright seems in accord with the authorities discussed above. However, this Court in Bearden v. State, 648 S.W.2d 688 (Tex.Cr.App.1983), overruled Cartwright and held that a motion for new trial based on jury misconduct does not necessarily have to be verified by a defendant or his attorney if supported by an affidavit.4 In Bearden the motion was supported by a juror’s affidavit. Bearden, of course, must be read with care. If an unverified motion is broader than the affidavit, then the unsupported parts of the motion may constitute insufficient pleading, and the court may not be required to consider those parts. Johnston v. State, 396 S.W.2d 404 (Tex.Cr.App.1965).
It is here observed that the motion for new trial in the instant case was not sworn to by either the appellant or his attorney. Under a long line of decisions in place at the time the trial judge acted on June 14, 1982, the motion was fatally defective, Carruthers v. State, supra, and did not require a hearing. Pate v. State, supra. Only since Bearden v. State, supra, decided in 1983, after the trial judge’s ruling may an attached affidavit supply the missing verification to a motion for new trial based on jury misconduct. The trial judge was not in error when he ruled. If Bearden is to be applied to the instant case, the allegations in the juror’s affidavit concerning jury misconduct can be reviewed.
The unsworn motion for new trial contained these general allegations:
“HI.
“The verdict of the jury was decided by the quotient and was an unfair expression of opinion by the jurors. (See Affidavit of John Gregory, attached as ‘Exhibit B.’)
“IV.
“The Defendant’s right to trial by a fair and impartial jury was prejudiced when one of the juror’s (sic) heard prejudicial remarks about the Defendant made outside the record by a witness in the case during a conversation between the juror and the witness on the elevator prior to the sentencing phase of the trial. This is fundamental error as the right to trial by an impartial and fair jury is guaranteed to the Defendant by the Texas and United States Constitutions and the Texas Code of Criminal Procedure. (See Affidavit of John Gregory, attached as ‘Exhibit B.’)
******
“IX.
“The jury discussed parole several times in reaching its decision on the punishment to be given the Defendant. This misconduct resulted in an unfair verdict against the Defendant and was fundamental error in violation of due process of law. (See ‘Exhibit B’ attached.)”
The motion concluded:
“WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Honorable Court will set aside the Defendant’s judgment of conviction and grant the Defendant herein a new trial in this cause, and thereafter dismiss said cause for lack of prosecution.”
There was no request in the motion for a hearing or for the issuance of subpoenas in *667order that appellant might develop eviden-tiary support for his allegations.
The affidavit of juror Gregory stated in part:
‘“We had no trouble finding Mr. McIntyre (sic) guilty. We didn’t spend very much time at all reviewing the evidence because I think we all were agreed from the beginning that Mr. McIntyre (sic) was guilty.
* ⅜ ⅜ ⅜: % ⅛
“ ‘... On the morning that we began deliberating on the punishment to be given Mr. McIntyre (sic), there was some disagreement between us as to how many years he should get. I thought he ought to get at least ten years because if he got less than ten years we would all have to decide whether to give the defendant probation. And I remember that we couldn’t agree right away how much punishment he should get. One lady said she felt he should get five years because he was a church member. But I would have fought her tooth and nail if she hadn’t changed her mind after lunch. I really think she just wanted to stay long enough so she wouldn’t have to go back to work. But I wanted to go back to work that afternoon and was hoping to get the sentencing done before lunch. But we couldn’t agree and the judge told us we could go to lunch. During the evening adjournment of the guilt/innocence phase, after I had picked up my newspaper from the jury room I got on the elevator to leave. While I was on the elevator, one of the witnesses came over to me and saw my jury button and asked which court I was in. I told him I was in Judge Hester’s court. He asked me if it was Mr. McIntyre’s (sic) case and I nodded my head — I didn’t say anything to him. He said, “What do you do with a guy like that?” The witness was the older one of the two Mormons who testified. I didn’t say anything, I just left.
“ ‘After lunch I remember one of the jurors suggested we ought to figure out what each one of us thought Mr. McIntyre (sic) should get and then we should just take the average. He thought that that would be a good way to do it. One of the other jurors, a slim Mexican-American man, said that if we were going to do that, then he thought Mr. McIntyre (sic) should get fifty years. I figure he wanted to make his number high so the average would be higher. I remember him saying something about not wanting that pantywaist, McIntyre (sic), around for a long time. Anyway, we made out little slips of paper with the number of years we thought he should get on it and one of the women jury members came around and picked it up. Then we averaged them all up and the average was twenty-seven years. The two jurors who were holding out for less than ten years agreed to change to twenty-five years and that’s how we all finally agreed to twenty-five years. You know it’s hard to agree about how many years a guy like that ought to get. If we had agreed on ninety-nine years, it wouldn’t have mattered to me because you figure he’ll get out on parole sooner or later. Of course we all discussed parole several times before we finally agreed on the twenty-five years. I remember someone saying during one of the discussions about parole, “How do you rehabilitate a man like that?” During the time when we wrote out our pieces of paper, I think I wrote down fifteen years. This was right after lunch when we wrote out our pieces of paper....’ ”
Quotient Verdict
A new trial is called for where the jury, in assessing the penalty, agrees to divide by twelve (in a district court) the total of the number of years of imprisonment suggested by each juror, and to adopt the quotient as their verdict. Ramsey v. State, 140 Tex.Cr.R. 561, 146 S.W.2d 192 (1940); 25 Tex.Jur.3rd, Criminal Law, § 3484, p. 351. Before a new trial will be granted on this basis, however, the jurors must have agreed to be bound by the result of the averaging process. Absent such an agreement, there is no error in the jurors using *668this device. Martinez v. State, 496 S.W.2d 612, 613 (Tex.Cr.App.1973); Brown v. State, 475 S.W.2d 938, 959 (Tex.Cr.App.1971), and cases there cited. See also Davis v. State, 419 S.W.2d 648 (Tex.Cr.App.1967). “If it appears that the jury did not accept or agree to the quotient obtained, but agreed on a different penalty, a motion for new trial will ordinarily be denied.” 25 Tex.Jur.3rd, Criminal Law, § 3484, p. 352; Martinez v. State, supra; Harris v. State, 114 Tex.Cr.R. 647, 26 S.W.2d 225 (1930). Juror Gregory stated the jurors agreed to an “averaging.” He did not assert there was an agreement to be bound by the averaging process. In fact, Gregory noted they agreed on a different penalty. The majority would hold that a mere allegation of “averaging” would entitle a defendant to a hearing on his new trial motion even if a different penalty was assessed. This does nothing but authorize a fishing expedition which is prohibited. The majority is wrong.
Parole Law
It is common knowledge that inmates are released on parole. McCartney v. State, 542 S.W.2d 156 (Tex.Cr.App.1976); Austin v. State, 531 S.W.2d 615, 618 (Tex.Cr.App.1975); Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), and cases there cited. See also Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). Not every mention or misstatement of the parole law or other improper comment calls for reversal. Slanker v. State, 505 S.W.2d 274 (Tex.Cr.App.1974); Jones v. State, 462 S.W.2d 578 (Tex.Cr.App.1970). In Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982), this Court did establish the test that if any single juror voted for increased punishment because of a discussion of the parole laws reversal would follow. The Court of Appeals found the juror’s affidavit did not meet the test in Munroe and did not require a hearing on the new trial motion. Munroe has now been overruled by Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984). The five-prong test established in Sneed requires the defendant to show (1) that a misstatement of the parole law (2) asserted as a fact was made (3) by someone professing to know the law (4) which was relied upon by other jurors (5) who for that reason change their vote to a harsher punishment. There is nothing in the affidavit .to indicate reasonable grounds to believe jury misconduct occurred as to a discussion of the parole law under either Munroe or Sneed. Here again the majority is in error.
The juror’s affidavit stated that when leaving after adjournment at the guilt/innocence phase of the trial he was approached by a defense character witness who had testified appellant was an elder in the Mormon church. When the witness determined the juror was a juror in Judge Hester’s court and in appellant’s case, he stated: “What do you do with a guy like that?” The juror did not respond and left.
The Court of Appeals found the “conversation” was an unsolicited question from one of appellant’s own character witnesses, and did not concern the “specifics of appellant’s proceedings.”
Under the 1925 Code of Criminal Procedure, it was provided by statute (Article 671, C.C.P.) that the jury was required to be sequestered in felony cases. Under the former Code unauthorized conversation or communication between a juror and an unauthorized person out of court was presumed to be injurious in felony cases. Cole v. State, 157 Tex.Cr.R. 469, 250 S.W.2d 201 (1952); 25 Tex.Jur.3rd, Criminal Law, § 3518, p. 428. Under the 1965 Code of Criminal Procedure, it is discretionary with the court in felony cases as to whether the jury may be separated, within certain limits. Article 35.23, V.A.C.C.P.
“If a jury is not sequestered, there is no presumption of harm where it is shown that a juror spoke to some other person. The mere showing by the defendant, where the jury has been permitted to separate, that a juror conversed with another does not impose on the state the burden of showing that the. conversation did not relate to the case. Rather, the burden is on the defendant to show that the conversation was about *669the case to support a motion for new trial.”
25 Tex.Jur.3rd, Criminal Law, § 3518, pp. 429, 430; Maldonado v. State, 507 S.W.2d 206 (Tex.Cr.App.1974); Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982). It is generally presumed that a defendant is injured whenever an impaneled juror converses with an unauthorized person about a case. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Ex parte Watson, 606 S.W.2d 902 (Tex.Cr.App.1980). The presumption is rebuttable if the ease was not in fact discussed or if nothing prejudicial to the accused was said. See Chambliss v. State, 633 S.W.2d 678 (Tex.App. — El Paso 1982).
Here it appears that the juror was free to separate. The affidavit stated it was at the “evening adjournment of the guilt/innocence phase” when he was approached by one of the two Mormons who had “testified.” The record reflects the two Mormons testified on the morning of May 12, 1982, and that afternoon the case was submitted to the jury at the guilt/innocence stage of the trial. The jury returned its verdict at 3:05 p.m., and were discharged at 3:12 p.m., and excused until 9:30 a.m. on May 13, 1982. The “evening adjournment” after the Mormons had testified would have been after the verdict of guilty. The witness said: “What do you do with a guy like that?” The juror ignored the remark and said nothing. Under these circumstances any presumption of harm raised by the affidavit was rebutted by the other allegations in the affidavit and the record. There is no necessity for a hearing for the State to rebut any such presumption. Here again the majority errs.
The trial judge acted in accordance with the case law in effect at the time in overruling the motion for new trial since the motion was sworn to, and nothing was presented “for hearing.” Pate v. State, supra. If the later decided Bearden case is applied, then still nothing is presented for “hearing” in view of the juror’s affidavit for the reasons stated above.
In another ground of review appellant argues he had an absolute right to have his motion heard. This is not so. There is no automatic hearing rule. A motion for new trial may be overruled by operation of law. See Article 40.05(c), Y.A.C.C.P. As has been seen, if the pleadings are not in proper form, no hearing on the new trial motion is absolutely required. The questions presented by appellant’s motion were determinable from the record and juror Gregory’s affidavit. Under these circumstances there was no error in overruling the motion for new trial without an evidentiary hearing. See Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App.1981); Hilton v. State, 443 S.W.2d 843 (Tex.Cr.App.1969). See also United States v. Chagra, 735 F.2d 870 (5th Cir.1984).
The granting or denying of a motion for new trial rests within the discretion of the trial court, and in absence of an abuse of discretion the appellate court is not normally justified in reversing that decision on appeal. See generally 25 Tex.Jur.3rd, Criminal Law, § 3570, p. 508. While many cases cited for this proposition involve cases where there has been a hearing on the motion for new trial, e.g., Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.1976); Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975); McCartney v. State, 542 S.W.2d 156, 162 (Tex.Cr.App.1976), it is not always so limited. It is applicable where the court denies motion without evidentiary hearing. See Menjares v. State, 456 S.W.2d 946 (Tex.Cr.App.1970); Cooper v. State, 146 Tex.Cr.R. 449, 176 S.W.2d 190 (1943); Benavides v. State, 17 S.W.2d 1068 (Tex.Cr.App.1929); Ross v. State, 100 Tex.Cr.R. 295, 273 S.W. 582 (1925). See also United States v. Johnson, 596 F.2d 147 (5th Cir.1979).
In the instant case, in my opinion, the court did not abuse its discretion. The judgment of the Court of Appeals should be affirmed.
The majority of this Court should either “fish or cut bait.” If the majority believes that the appellant has been improperly denied an evidentiary hearing on his motion for new trial, they should set the conviction aside, no ifs, ands or buts. The delay, *670already too long, should not be prolonged or the finality of the judgment held in suspension. To engraft upon the Texas system of criminal jurisprudence a feasibility study or hearing to determine whether a hearing on the motion for new trial can now be had, and if it can, then a hearing on the new trial motion three years or so after the fact, is a giant leap in the wrong direction and towards an automatic hearing rule on all new trial motions.5
I dissent, as the late Judge Morrison used to say, with all the vigor at my command.
W.G. DAYIS, J., joins this opinion.. The majority in its original opinion stated:
“We also granted appellant’s petition in order to review the judgment of the court of appeals insofar as it pertained to purported error in the trial court’s disposition of appellant’s motion for new trial.”
Actually our grant was much narrower than indicated by the majority. Clarification may be needed in view of the majority’s instant disposition of this cause and numerous other allegations in the motion for new trial not involving alleged jury misconduct.
. The majority, referring to the instrument as a "motion" rather than a notice of appeal, asserted "what is certain from the motion is that appellant’s attorneys were out of town.” The motion was unsworn and no evidence supports the assertion or the majority’s conclusion of certainty if material.
. The new procedure as to giving of the notice of appeal in criminal cases and the subsequently filed motions for new trial have caused confusion as well as questions of jurisdiction. See, e.g., Mayfield v. State, 627 S.W.2d 474 (Tex.App. —Corpus Christi 1981); Hall and White v. State, 698 S.W.2d 150 (Tex.Cr.App.1985).
. Bearden held that the authorities cited in Cartwright itself did not support its holding as three cases cited involved motion for new trial based on newly discovered evidence rather than on jury misconduct. Two cases cited involved a juror’s affidavit sworn to before the defendant's attorney which rendered the affidavit fatally defective. Cf. Harvey v. State, 150 Tex.Cr.R. 332, 201 S.W.2d 42, 45 (1947), the Court, discussing a motion for new trial alleging jury misconduct, concluded that “reasonable notice should be given not only the trial court but the State, as well, as to the misconduct relied upon_” Citing Harvey, this Court in Trout v. State (Tex.Cr.App. No. 270-84) (Oct. 30, 1985), stated "An instance of jury miscondut included in a supporting affidavit but not in the motion for new trial is not ‘reasonable notice.’ ”
. The majority does not make clear that if a hearing on the motion for new trial is had, whether it should be limited to the issues of jury misconduct, here discussed, or whether the motion and all its allegations are to be considered. Can the motion be amended before the belated hearing? These and other questions are left unanswered.