Appellant's motion for rehearing is based solely on his contention that a new trial should have been granted because of the claimed separation of the jury pending the trial. This question was not stated or discussed in the original opinion. Appellant had filed no brief in the case. There has been filed in this court a statement of facts of the testimony of all of the witnesses heard by the court in passing on appellant's motion for new trial on the ground stated. No file mark of the clerk of the lower court is shown thereon, although the clerk certifies that it contains a true and correct copy of the statement of facts by the judge in passing on the motion for new trial.
It is well settled that in order to be considered by this court it is necessary that the statement of the evidence heard on such motion shall be filed during the term of court at which the trial occurred. (Reyes v. State, 81 Tex.Crim. Rep., where a large number of these cases are collated.) Hence if this statement was filed in the lower court after the adjournment for the term it could not be considered. However, under the circumstances, this being a death penalty case, we have read this statement of facts. It is amply sufficient to show that there was no separation of the jury as contended by appellant in his motion. The trial judge expressly states that he found from this testimony that there was no separation of the jury. It is unnecessary to detail the testimony. So that if this statement was filed after the court had adjourned it could not be considered, and, therefore, no error would be shown by *Page 190 the court's refusing to grant the new trial on that ground. On the other hand, if it was filed in the lower court in time, then from the testimony heard by the court on the subject he was clearly authorized to find that appellant's claimed separation of the jury was untrue. So that in either event we must hold no reversible error was shown on this ground.
The motion is, therefore, overruled.
Overruled.