The opinion
ON APPELLANT’S MOTION FOR REHEARING.
MORRISON, Judge.
Appellant contends that we were in error in considering the affidavit made by Juror Gay on the day set for hearing on the motion for new trial because the same was taken before Joe S. Maida III, an Assistant District Attorney who participated in the *640 trial. Reliance is had upon Melton v. State, 78 Tex.Cr.R. 539 , 182 S.W. 289 , which holds that an affidavit taken before the State’s counsel should not he considered by the trial court when offered at a hearing on a motion for new trial.
When Juror Gay swore at the hearing that the affidavit made by appellant’s counsel was untrue, such testimony rendered appellant’s motion for new trial insufficient as a pleading and under the rule announced in Vowell v. State, supra, and the action of the court in overruling the motion at any stage of the proceeding could not be assigned as error.
Appellant’s motion for rehearing is overruled.