dissent">

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge

(dissenting).

The majority overrules without written opinion, but Judge ONION and the writer *649are convinced that appellant’s motion for rehearing should be granted and will explain our reasons. Angle v. State, supra, cited in the original opinion did not involve the supplementation of a record while the case was in this Court. The original unpublished opinion in that case declined to consider the statement of facts before us because of what we deemed a faulty approval of counsel. After the original opinion was handed down, it was made known to this Court that Angle’s attorney of record at the trial and on appeal, together with the attorney for the State, did, in fact, agree that the record which was before this Court constituted a complete statement of facts and that there were no additional facts elicited upon the trial on the merits which were not incorporated therein. As it is readily apparent now, Angle v. State, supra, did not involve a supplementation of the record, but an authentication of what was already here. The cases cited in the published opinion of Angle relate to comparable situations, and are of no help to the State in their effort to supplement the record after an opinion has been handed down. While not controlling, we do point out here that the supplementation was approved by appellant’s trial counsel, who, so far as our record appears, was not longer representing appellant, because appellant was represented in this Court by Honorable Will Gray alone.

In McDonald v. State, Tex.Cr.App., 385 S.W.2d 253, this Court had occasion to deal with a supplementation of the record prior to submission on our docket, and the majority concluded that in order to effectively terminate litigation before this Court, we would consider only those statements of facts which were filed with the clerk of the trial court, approved by the trial court, and filed in this Court prior to original submission on our docket. A number of cases were cited in support of such conclusion.

The instrument relied upon in our opinion on ‘Rate’s motion for rehearing does not comply with the rule set forth above, in that it was not filed in this Court until after original submission, and for this reason should not have been considered. The rule announced in McDonald, v. State, 385 S.W.2d 253, is consistent with this disposition.

The case before us does not involve a question of constitutional dimension and therefore, the holding of the Supreme Court of the United States in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, has no application. See White v. State, Tex.Cr.App., 410 S.W.2d 440.

We respectfully dissent to the overruling of appellant’s motion for rehearing.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

BELCHER, Judge.

Appellant urges that the majority opinion is not supported by Angle v. State, supra, because the only correction of the statement of facts in Angle was by way of affidavits of the attorneys who approved the record.

In Angle this court considered the statement of facts shown to be complete by such affidavits “In fairness to appellant” and said:

“While there are cases which would appear to support a contrary holding, we have decided that the additional evidence that has come into the record by way of affidavits of the attorneys who approved the statement of facts is available and that under the present record the statement of facts may be considered.”

To consider this record in which a clerical error relating only to the date of a prior offense resulting in a conviction used for enhancement has been corrected is consistent with our holding in Angle.

It is noted that the Supreme Court of the United States in its opinion in Henry *650v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, set the precedent, that appellate courts are no longer bound in all cases to confine themselves to the record on appeal sent up from the trial court.

Appellant’s second motion for rehearing is overruled.

MORRISON, and ONION, JJ., dissent to the overruling of appellant’s second motion for rehearing.

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