The opinion
DAVIDSON, Judge,
(dissenting).
My brethren overrule appellant’s motion for rehearing without written opinion.
To that disposition of the case I do not agree. I am convinced that this record definitely reflects misconduct on the part of members of the jury during deliberations, in positive violation of Sec. 7 of Art. 753, C.C.P., to appellant’s injury, especially in the punishment here assessed.
In my dissenting opinion in Burris v. State, 161 Tex. Cr. R. 210 , 276 S.W. 2d 260 , at page 266, I expressed my view that when a trial court entertains a motion for new trial and hears the evidence in support thereof any technicality in the drafting of the motion is waived and this court has no authority or power to refuse consideration of the question presented for review, which question was before the trial court and upon which he acted.
I remain convinced not only of the correctness of the position I took in the Burris case but also of the fundamental fairness of such position.