¶1The offense is the possession of untaxed' whiskey; the punishment, ten days in jail and a fine of $150.00.
¶2No statement of facts accompanies the record.
¶3Three formal bills of exception appear in the transcript, but there is no showing that they were filed in the trial court within the 90 days provided by Article 760d, Vernon’s. Ann.C.C.P., and therefore cannot be considered.
¶4No reversible error appearing, the judgment is affirmed.
¶5*335ON APPELLANT’S MOTION FOR REHEARING
¶6It is now made to appear that the bills of exception referred to in our original opinion were filed in the trial court on December 5, 1963, and notice of appeal was given on October 30, 1963.
¶7Bill No. 1 complains that the state failed to introduce competent, positive and unequivocal evidence that the liquid offered in evidence was an alcoholic beverage as contemplated by Art. 666-3a, Vernon’s Ann. P.C.
¶8Bills 2 and 3 relate to the form of the affidavit for search warrant and the admission in evidence of the fruits of the search.
¶9The motion for rehearing presents interesting questions regarding certification of error in ruling upon the admissibility of evidence in a trial before the court. We note, however, that the information alleged the possession of whisky in a container which had no tax stamp and no evidence affixed showing payment of tax to the state and the appellant pleaded guilty to the charge in the information before the court.
¶10This being a misdemeanor case, the state was not required to introduce any evidence and the presumption is that in arriving at his judgment the court did not consider any evidence improperly admitted. See Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106; Tealer v. State, 163 Tex.Cr.R. 629, 296 S.W.2d 260; Slater v. State, 169 Tex.Cr.R. 587, 336 S.W.2d 167.
¶11In the absence of any showing that the evidence introduced showed as a matter of law that the defendant was not guilty as charged, the court’s judgment upon the defendant’s plea of guilty will not be disturbed.
¶12Appellant’s motion for rehearing is overruled.