OPINION
CAMPBELL, Judge.
Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.
The appellant was convicted of intentionally causing the death of Marcus Hathorn in the course of committing and attempting to commit the offense of burglary. Appellant raises five points of error. He argues that the evidence was insufficient to prove that the murders occurred during the course of a burglary; that there was insufficient corroboration to support the accomplice testimony of Gene Hathorn; that the indictment was insufficient because it failed to allege the elements of burglary within the capital murder charge; that the judge’s failure to instruct the jury at the punishment phase concerning appellant’s right not to testify requires a new trial; and that the judge erred in denying appellant’s motion for new trial because of newly discovered evidence after Hathorn recanted his prior testimony. We will affirm the conviction.
Appellant and Gene Hathorn, Jr., appellant’s accomplice, became acquainted while working at the State Hospital at Rusk. Both living in Rusk, the two men continued their friendship after appellant left his job at the hospital. Recurrent topics of conversation were Hathorn’s desire to commit “the perfect murder” and his wish to kill his father, stepmother, and half-brother, a wish motivated by animosity and the pros[425]*425pect of an inheritance. Hathorn, whose parent’s lived in a trailer located in an isolated and wooded area, planned to shoot everyone in the trailer using a number of different weapons, take several items that would be missed, and plant Negroid hairs and the butts of cigarettes that had been smoked by blacks. He hoped to make the killings look like a burglary committed by a group of “drug-crazed niggers.” In addition to his plan for the scene of the crime, Hathorn wanted to have an accomplice. The accomplice was to provide an alibi as well as to help with the shootings. Hat-horn proposed his plan to a few different people, but appellant was the only interested party. Appellant requested $12,500 from the proceeds of the estate for his participation in the murders.
On October 9, 1984, appellant and Hat-horn left Rusk and went to Nacogdoches, ostensibly for appellant to check some books out of the library at Stephen P. Austin University, where appellant had formerly been a student. The two went to Nacogdoches by way of Gallatin, in Cherokee County. Appellant had relatives who owned property near Gallatin. There, appellant and Hathorn conducted some target practice with Hathorn’s shotgun. When finished, they went on to Nacogdoches. While in Nacogdoches, the two went to several highly visible places in addition to the library. When finished, they drove on to Hathom’s parents’ home in Trinity County, near Nogalus Prairie.
Hathorn testified that when he and appellant arrived at his parent’s home, they got out of the car. Hathorn gave appellant a .380 pistol, a Ruger Mini-14 rifle, and cellophane packets containing the hair and cigarettes butts that they were going to leave at the scene. Hathorn kept the shotgun. Thus armed, the men cut through the woods until they got to the driveway leading to the Hathom’s trailer. They followed the driveway until they reached the clearing around the trailer. At this point, they followed the tree line around the clearing to the trailer. Hathorn went behind the trailer, and appellant went to the back door. Once positioned, Hathorn fired a shot through a large back window. When the shot was fired, Mr. Hathorn was sitting with his back to the window with his head visible above the top of the sill. Upon hearing the shot, appellant was to enter the back door with the remaining two weapons in order finish any job that the shotgun blast failed to do, plant the evidence, and remove agreed upon items of property. Hathorn said that he heard shots fired from inside the trailer. A few minutes later, appellant came out the front door of the trailer carrying a video cassette recorder, a video disk player, and a number of the Hathorn family’s guns. They both loaded the items into the car. Hathorn drove a van belonging to the victims, and appellant drove the car in which they had arrived. Hathorn drove to Nigton, a “predominantly black” area. There, he left the van on a residential street and joined appellant in the car they had brought. Next, they drove to Nacogdoches, stopping twice to drop the items removed from the trailer, the pistol, and the rifle off of two different bridges into two different rivers. Arriving in Nacogdoches, they returned to the library to check out an additional book. Completing this, they returned home.
Crime scene investigators and a forensic pathologist testified about the physical evidence discovered. The evidence and testimony of these witnesses corroborated, as far as possible, Hathom’s version of the facts. The forensic pathologist testified that all three victims had wounds from a shotgun blast or blasts. In addition, Mr. and Mrs. Hathorn had fragments of glass and other debris in their wounds which would be consistent with a shotgun being fired through a window. He went on to say that, based on his examinations, the shotgun wounds of the victims were the first gunshot wounds to be inflicted. Assuming that the shotgun wounds occurred simultaneously, the additional gunshots to Mr. and Mrs. Hathorn, whose bodies were found in the living room, were inflicted next, and the additional wounds to Marcus, the Hathom’s son, whose body was discovered in a bathroom, were inflicted last. Investigators at the crime scene stated that the pattern of buckshot which hit the ceil[426]*426ing and opposite wall of the trailer would be consistent with that which would have been made if Hathorn’s shotgun had been fired from the position from which Hathom testified that he had fired. The locations of shell casings found inside the trailer and the projected trajectory of the shots fired would be consistent with an individual entering through and firing from the trailer’s back door. Ballistics tests matched the bullets recovered from the bodies to Hat-horn’s pistol1 and rifle.
Appellant testified and denied his complicity in the murders. He admitted that he accompanied Hathom to Gallatin and to Nacogdoches; however, he said that he agreed to leave Nacogdoches with Hathorn because he was offered an opportunity to make $2,000 by participating in a drug transaction. Appellant’s account of the trip to the Hathorn residence coincided with that of Hathom until the two arrived at their destination. Appellant said that the two drove all of the way up the driveway and to the trailer. He said that Hat-horn instructed him to stay outside while he went into the trailer to conduct his transaction. Hathom went to the door, knocked, and entered the trailer for a short while. After leaving the trailer, Hathorn went to the car and retrieved the shotgun. Hathorn, who. was now wearing rubber gloves, then went to appellant, who was standing away from the mobile home near a camper trailer parked in the yard, and told him, “I don’t want to have to do it this way.” Hathorn then rapidly turned and fired the shotgun through the back window “as if he were shooting skeet” and shouted “Mommy and Daddy get down somebody’s shooting at us.”2 He then said to appellant “If I go down you go down. Shoot anything that moves.” And, then handed appellant the shotgun. Hathom then ran off, but appellant did not see where Hat-horn ran because he laid down on the ground. At this point, appellant said that he did not see Hathorn in possession of any other weapons and, at that point, had not seen any weapon, other than the shotgun, during the evening. “A few seconds later,” appellant heard three or four shots fired rapidly, a pause, and a similar group of shots. Unsure of what was happening, appellant said that he crept into the edge of the woods and hid. After a while, appellant worked his way back to the camper and shouted for Hathorn. Hathom shouted back for appellant to get back in the car. From the point appellant returned to the car, the two men’s stories again coincide.3
In his second point of error, appellant argues that the evidence was insufficient to prove that he killed Marcus Lee Hathom while in the course of committing burglary upon the habitation of Gene Hat-horn [Sr.]. This point of error focuses on the burglary component of V.T.C.A. Penal Code, § 19.03(a)(2), rather than whether appellant committed a murder under V.T.C.A. Penal Code, § 19.02(a)(1). Appellant argues that entry into the Hathorn’s residence was with the intent to kill the occupant’s rather than to commit a theft or robbery, and that the taking of property was merely a ruse intended to mislead law enforcement officials.4 In other words, if [427]*427appellant is guilty, it is of committing a burglary during the course of murder, rather than a “murder in the course of committing or attempting to commit ... burglary_” V.T.C.A. Penal Code, § 19.03(a)(2). The State responds that burglary may be committed by an entry to commit a felony or theft. V.T.C.A. Penal Code, § 30.02(a)(3), and that the evidence was sufficient to prove both types of burglary. In addition, although the primary motive was to kill the occupants, it is permissible to rely on a secondary motive for entering the habitation. Hathom’s testimony indicated that the actors had an intent to kill, a felony, and to take property without effective consent, theft, prior to entry.
In judging the sufficiency of the evidence to sustain a conviction, this Court will compare the evidence adduced to the judge’s charge to the jury in order to determine whether a rational trier of fact could find all requirements set out in the charge beyond a reasonable doubt. Marras v. State, 741 S.W.2d 395, 408 (Tex.Cr.App.1987) (and cases cited therein). The instructions to the jury required the jury to find, beyond a reasonable doubt, that appellant intentionally killed Marcus Lee Hat-hom “while in the course of committing or attempting to commit burglary of a habitation owned by Gene Hathom.” Further, the charge stated that “A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation with intent to commit a felony or any theft.” [emphasis added]. For purposes of this point of error,5 the evidence is sufficient if the jury could find, beyond a reasonable doubt, that appellant entered the Hathom residence with intent to commit a felony.
Recently, this Court has held that an unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge. Fearance v. State, (Tex.Cr.App.No. 69,024 delivered Dec. 7, 1988) (not yet reported, slip op. at pp. 10-11). Therefore, if the jury could reasonably have found from the evidence that appellant entered the Hathom residence with the intent to commit murder, then the evidence is legally sufficient.6 Hathom expressly stated that appellant agreed to a plan by which he would enter the trailer after Hathom fired the shotgun and kill the occupants. Hath-om also testified that appellant had gone to the. back of the trailer, that there were gunshots fired from within the trailer, and that, after the shots were fired, appellant exited the front of the trailer. In addition, testimony showed that the guns that Hathorn said that he gave to appellant were the same ones that caused the deaths of all three occupants. Based on this evidence, a rational trier of fact could have easily found, beyond a reasonable doubt, that appellant entered the trailer and that entry was with the intent to commit murder. Appellant’s second point of error is overruled.
In his third point of error, appellant argues that there was insufficient evidence to corroborate the testimony of accomplice, Gene Hathom. Art. 38.14 V.A.C.C.P. Appellant argues that, aside from Hathom’s testimony, the evidence proves only that appellant was present at the scene of the crime, a fact which is not inconsistent with appellant’s defense. Relying on Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971), he argues that mere presence of a defendant at the scene of a crime is not sufficient to corroborate accomplice testimony. The State counters by summarizing the independent pieces of evidence which corroborate certain details of Hathom’s testi[428]*428mony and those which tend to connect appellant to the commission of the murders.
Appellant correctly argues that “[n]o one may be convicted on the basis of accomplice testimony without other evidence which corroborates the accomplice testimony and tends to connect the defendant with the commission of the charged offense.” Cockrum v. State, 758 S.W.2d 577, 581 (Tex.Cr.App.1988); Art. 38.14 V.A.C.C.P. “The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense.” Id. at p., 581 (See also cases cited therein). We will address each of the corroborative pieces of evidence set out in the State’s brief, as well as other evidence in the record, to determine the sufficiency of the corroborating evidence.
The State argues that the fact that the Hathorn van had been moved 18 miles to Nigton serves to corroborate the accomplice testimony. This argument reasons that a single person could not, within the time frame established by other evidence, have driven the van to its destination and walked back to the Hathom’s trailer in order to pick up the other car. In addition, a witness testified that, at about 9:15 P.M. on the night of the murder, he saw the Hathom’s van being followed closely by another vehicle, and appellant admitted that he aided in moving the van to Nigton. The State is correct that this evidence sufficiently proves that two people were at the murder scene and participated in moving the van. This evidence, however, does not “tend to connect” appellant to the crime. Mere presence of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony. E.g., Brown v. State, 672 S.W.2d 487, 489 (Tex.Cr.App.1984). In addition, this element of “corroboration” merely proves details of the accomplice’s testimony. It does not corroborate a fact which tends to connect appellant to the killing. Losada v. State, 721 S.W.2d 305, 308 (Tex.Cr.App.1986); Paulus v. State, 633 S.W.2d 827, 844 (Tex.Cr.App.1981). No matter how convincingly proven, the fact that some person helped Hathorn move the van does not disprove appellant’s exculpatory version of the facts and fails to connect appellant to the commission of the killing.
The State argues that, because items taken from the Hathorn residence and one of the murder weapons were found where the accomplice witness said that they would be found, Hathorn’s testimony was corroborated. Analytically, this is identical to the State’s previous argument. Discovery of these items does corroborate the accomplice’s testimony that the items were thrown from specific river crossings. This physical evidence, however, does not corroborate accomplice’s assertions which connect appellant to the commission of the murders. Losada, supra; Paulus, supra. Therefore, this evidence does not tend to connect appellant to the commission of the offense within the framework of Art. 38.14. V.A.C.C.P. Reed v. State, 744 S.W.2d 112, 125 (Tex.Cr.App.1988).
The State contends that testimony from the accomplice’s wife corroborated accomplice’s testimony. She testified that, on the night of the murders, Hathorn told her that they were to go to his parents’ home the next morning. Again, this testimony represents corroboration of a detail which fails to connect appellant to the commission of the offense. Losada, supra; Paulus, supra.
Hathorn, in a taped conversation with Neil Shriver, admitted that he murdered his family and that he was assisted by an unnamed person.7 The State argues that this prior consistent statement serves to prove that Hathorn was aided in the commission of these murders. Coupled with proof that appellant was the only oth-
[429]*429er person present at the scene of the crime the State reasons that it was appellant who assisted Hathom. The underlying premise behind the accomplice witness rule is the idea that an accomplice witness is a “discredited witness” and that “the testimony of an accomplice witn ess is to be carefully scrutinized not only because of any interest he or she might have, but because her or his testimony is evidence from a corrupt source.” Paulus, supra at 843. Given these concerns over the witness’s potential bias and inherent lack of credibility, a prior consistent statement made by that same witness fails to provide the additional degree of reliability that corroboration by independent evidence would provide and that Art. 38.14 requires. McCormick on Evidence, (E. Cleary ed. 3d ed. 1984), makes the following observations about the relevance of prior consistent statements to prove the truth of a current statement.
What kind of attack upon the witness opens the door to evidence of prior statements by the witness consistent with his present story on the stand? When the attack takes the form of impeachment of character, by showing misconduct, convictions or bad reputation, it is generally agreed that there is no color for sustaining by consistent statements. The defense does not meet the assault. Further, if the attacker has charged bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.
McCormick on Evidence, supra at 118-19 Here, the underlying basis for the accomplice witness rule effectively challenges the witness’s character and places bias at issue. Hathom had every reason to tell Shri-ver the same story that he told at trial— Hathom knew at that time that appellant was present at the scene and, if appellant’s version were a true statement of the facts, that appellant posed the greatest threat as a source of inculpatory evidence. Because, in this situation, the witness’s prior consist ent statement fails to address the questions of credibility which underlie Art. 38.14, e.g., bias, lack of credibility, motive, and corrupt source, Hathom’s statements to Shriver do not corroborate the accomplice testimony.
Neil Shriver and Larry Brown both testified that, before the murder, Hathom attempted to recruit them to participate in a scheme to murder his parents. Each of these solicitations involved plans similar to that which was ultimately used and would have required Hathorn’s assistant to actually participate in the killing. Such testimony is to be distinguished from Hathom’s prior consistent statement because it was not a potentially self-serving assertion of fact. Instead, this testimony serves to show that Hathom wanted somebody to help him with the killings. The relevance of this testimony is to prove that Hathom had formed a specific plan for killing his parents. Coupled with the assumptions that Hathom stayed with his original plan and that the events of the murder comported with that plan, one can infer that anyone accompanying Hathom on the night of the murders did so pursuant to that plan. Because the corroborative value of the testimony rests in part upon two assumptions, the validity of which we cannot be certain, the corroborative strength of this testimony is also uncertain.
Similar to Hathom’s attempts to solicit help in committing the murders is the testimony of Cathy Ross8 concerning conversations that she overheard between appellant and Hathom. Ross testified that, on more than one occasion, she heard appellant and Hathorn discussing a plan to commit the “perfect murder.” Whether these conversations represented the planning of an actual murder or merely a hypothetical one, they serve to show that Hat-hom had formed a plan and that appellant [430]*430was aware of its details.9 This fact serves to strengthen the reasoning set out concerning the testimony of Brown and Shri-ver.
Cathy Ross testified that on the weekend before the murders occurred, appellant went to the Stephen F. Austin library and checked out some books.10 In addition, this was the first time that appellant had gone to the university’s library since he had dropped out of school. Appellant’s sudden decision to, twice in one week, check out books from this library is suspicious given appellant and Hathom’s apparent11 attempt to use the time-stamped books as an alibi. “Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.” Brown, supra at 489 (and cases cited therein). While not independently sufficient to corroborate Hathorn’s testimony, Ross’s testimony provides a “suspicious circumstance” which tends to corroborate the testimony by suggesting the existence and implementation of a plan.
Independent evidence which generally tends to prove that an accomplice witness’s version of events is true, rather than the version given by the defendant, is considered corroborative, even if it concerns a mere “detail,” as opposed to a substantive link between the defendant and commission of the offense. See Brown, supra at 489; Paulus, supra at 845. The remaining corroborative evidence, while coming from various sources, is all of this variety. First, ballistics evidence concerning the point from which the shotgun blast was fired supports Hathorn’s testimony and is contrary to that of appellant.12 Second, appellant testified that, when Hathorn fired the shotgun he did not have the rifle in his possession. Hathorn testified that he fired the shotgun and that appellant immediately entered the back door and began to fire. The pathologist testified that the bullet wounds to Mr. and Mrs. Hathorn were inflicted very quickly after they were struck by the shotgun pellets. Under appellant’s version of the facts, Hathorn had to fire, give appellant the shotgun and instruct him to “shoot anything that moves,” run toward the back of the trailer, retrieve the rifle from the car, return to the back of the trailer, enter the trailer, and begin to fire. Hathom’s version is more consistent with the pathologist’s testimony concerning the time between shots.13 Third, Hathorn [431]*431testified that appellant was wearing overalls, a t-shirt, and a certain pair of tennis shoes. Hathom stated that appellant said that he intended to dispose of his shoes so that, in the event footprints were discovered at the scene, they could not be matched to his shoes. Appellant denies this statement and that he ever owned a pair of shoes like those Hathom described. Cathy Ross confirmed Hathom’s description of appellant’s dress and said that, since the day of the murder she had never again seen these articles of clothing.
Given appellant’s admitted presence at the scene of the crime and the number of factors which we have found that tend to connect appellant to the crime, we hold that the evidence is sufficient to corroborate the testimony of Hathom. Appellant’s third point of error is overruled.
In his first point of error, appellant argues that the indictment was insufficient because it failed to allege the elements of the burglary which was used to bring this murder under V.T.C.A. Penal Code, § 19.03. Appellant begins this point of error by acknowledging that this Court has repeatedly held that an indictment need not allege the constituent elements of the aggravating feature which elevates a murder to capital murder. E.g., Marquez v. State, 725 S.W.2d 217, 236 (Tex.Cr.App.1987), cert. denied, — U.S.-, 108 S.Ct. 201, 98 L.Ed.2d 152 (1988) (aggravated sexual assault); Hammett v. State, 578 S.W.2d 699, 708 (Tex.Cr.App.1979) (robbery); Hogue v. State, 711 S.W.2d 9, 14 (Tex.Cr.App.1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (arson). Appellant does not provide any authority or analysis which would compel us to except capital murders predicated on burglary from this general rale. See Hogue, supra at 14. Appellant’s first point of error is overruled.
In appellant’s fifth point of error, he claims that the trial judge erred in refusing to give the jury a “no-adverse-inference” instruction concerning his failure to testify at the punishment phase of trial. The State responds that appellant waived his Fifth Amendment privilege by testifying at the guilt/innocence stage of the trial and was therefore not entitled to an instruction. Alternately, the State contends that if the failure to instruct the jury was error, the error was harmless.
First, we will decide whether appellant waived his Fifth Amendment rights by testifying during the first portion of his trial. In Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969), the defendant testified at the guilt/innocence phase of his trial and was convicted. The indictment alleged a number of prior convictions for enhancement purposes. During the punishment phase, the State called the defendant as a witness in order to prove those convictions. The defendant objected on the basis of the Fifth Amendment. The trial judge overruled the defendant’s objection, compelling defendant to testify. In a case of first impression,14 this Court held that, for purposes of Fifth Amendment waiver, the punishment and guilt/innocence portions of a criminal trial are to be treated as separate hearings. Id. at 741. Thus, defendant’s waiver during guilt/innocence did not carry over to punishment. We reversed that conviction.
The State counters that in Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986), later proceeding Penry v. Lynaugh, cert. granted (on separate grounds) — U.S.-, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988), this Court held that a defendant waives his Fifth Amendment right to be warned prior to psychiatric examination15 when he introduces evidence of insanity at the guilt phase of his trial. Although correctly stating our holding in Penry, this argument fails because of factual distinctions between these cases. When a defendant introduces evidence of insanity, the State may compel him to submit to psychiatric examination. Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, [432]*4322917-18, 97 L.Ed.2d 336 (1987). In such a situation, a warning stating that the defendant has a right to refuse examination would be an incorrect statement of law. Therefore, the absence of warnings does not taint the examination. Id. On the other hand, the State may not call a defendant to testify at punishment simply because he testified at guilt/innocence. Brumfield, supra at 741. Thus, our holding in Penry is applicable only within the limited area of psychiatric examinations and Estelle v. Smith error. We hold that appellant did not waive his Fifth Amendment rights during the punishment phase of his trial.
Upon request from a defendant, a trial judge must instruct jurors that they may not draw any adverse inference from a defendant’s failure to testify. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121-22, 67 L.Ed.2d 241 (1981). The right not to testify continues beyond conviction until after a defendant has been sentenced. Brown v. State, 617 S.W.2d 234, 237 (Tex.Cr.App.1981); Brumfield, supra at 735. Therefore, because appellant’s right against self-incrimination extended to the punishment phase of trial and that right had not been waived, appellant was entitled to a “no-adverse-inference” instruction upon timely request.
Finding error, we now must determine whether the error was harmless.16 Normally, because this is an instance of charging error with timely objection, we would apply the “some harm” test set out in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985); c.f. Rose v. State, 752 S.W. 2d 529 (Tex.Cr.App.1988). However, the Supreme Court has stated, “The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law.” Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967). When an error implicates rights flowing from the United States Constitution, we must apply the harmless-error rule enunciated by the Supreme Court. Id. Before a “federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. at 828. This is the same standard imposed by our general harmless-error rule. Tex.R. App.Pro. 81(b)(2).
The right to a “no-adverse-inference” instruction is rooted in a jury’s natural tendency to assume that the decision not to testify stems from a defendant having something to hide. See generally Carter v. Kentucky, supra. In the instant case, this was not a concern. By testifying during guilt/innocence, the jury heard numerous things from the appellant.17 In addition, the State presented no evidence at the punishment phase. Thus, appellant was not placed in a position where the jury would expect him to counter factual assertions made by the State. In fact, if the jury was to draw any improper inference from a failure to present a case, it would have been made against the State.18 Appellant [433]*433did, however, call six witnesses.19 Limited to the unusual factual setting of this case, we find that the trial judge’s error in failing to give a “no-adverse-inference” instruction was, beyond a reasonable doubt, harmless. Appellant’s first point of error is overruled.
In his fourth point of error appellant argues that the trial judge erred in not granting an out-of-time motion for new trial based on Hathom’s recantation of his prior testimony and his new testimony which sought to exculpate appellant. On March 5, 1985, the trial judge entered a judgment of conviction. Appellant filed a “Motion For Leave To File Out Of Time Motion For New Trial” on December 3, 1986. On December 17, there was a hearing on the motion, and the judge denied the motion. Without reaching the merits of appellant’s motion for new trial, we hold that the motion was not timely and that the trial judge did not have jurisdiction to consider it.
Under the law applicable at the time when judgment was filed, appellant had thirty days to file his motion for new trial based on newly discovered evidence.20 Art. 40.03(6) Y.A.C.C.P.; Tex.R.Civ.P. 329b(a) (imposing the same requirements for motions for new trial which do not rely on newly discovered evidence as former Art. 40.05 Y.A.C.C.P.). Under former Art. 40.-05, a trial judge had no jurisdiction to entertain an out of time motion for new trial. Drew v. State, 743 S.W.2d 207, 223 (Tex.Cr.App.1987) (disallowing out of time motions for new trial based on jury misconduct, Art. 40.05, and newly available evidence, Art. 40.03(6), supra, and Rule 329b, supra) and cases cited therein. Thus, under the time table set into motion upon appellant’s conviction, sentencing, and entry of judgment, the trial judge had no jurisdiction to decide appellant’s motion on the merits. Appellant's fourth point of error is overruled.
Having considered the appellant’s points of error and finding no reversible error, we affirm the judgment of the trial court.
CLINTON, J., concurs in result.
MILLER, J. dissents.