The opinion
ON appellant’s motion for rehearing
McDonald, judge.
In his motion for rehearing, appellant urges that we now consider evidence relating to alleged jury misconduct, since he has now brought forward this evidence of alleged jury misconduct in a separate statement of facts. This, in reality, is a portion of the original statement of facts, withdrawn and separately bound, the official court reporter’s signed certificate bearing the date of July 20, 1960, and the trial court’s approval being signed and dated February 16, 1961.
While the legislative amendment to Sec. 4 of Art. 759a, V.A.C.C.P., does provide, in part, that the approval of the statement of facts by the trial judge after the expiration of the ninety-day period shall be sufficient proof that the time for filing was properly extended, we do not feel that the extension of time given by virtue of the trial court’s approval is applicable to this case or any similar case. We remain convinced that this case was correctly disposed of in our original opinion.
We desire to point out that the instant case is one in which appellant filed briefs and submitted himself to this court through his attorneys’ coming before us and making oral argument on original submission.
The original opinion of this court was handed down on February 8, 1961, and, as pointed out above, eight days later, on February 16, 1961, by the trial court’s signature his approval was obtained to the statement of facts filed separately in connection with appellant’s motion for new trial alleging jury misconduct.
We feel that the appellant has here effectively and conclusive *146 Iy waived the right to now come before this court and ask consideration of a matter over which he, himself, had absolute control. It is our conclusion that to hold otherwise would prohibit us from ever being able to effectively terminate appeals to this court.
The conclusion reached herein is not in conflict with our opinion in Urteago v. State, 169 Tex. Cr. Rep. 160, 333 S.W. 2d 133 , because in that case —as pointed out in the opinion— the excerpts from jury argument which we considered on motion for rehearing had been timely filed in the trial court prior to the original submission of the case in this court.
Appellant’s motion for rehearing is overruled.