OPINION
BELCHER, Judge.
The conviction is for rape; the punishment, death.
The appellant presents five grounds of error in his brief urging reversal.
In his motion for new trial filed November 8, 1966, appellant alleged in paragraph 7:
“The defendant would show to the court that there has been new testimony material to the defendant’s defense which has been discovered since the time of the trial.”
In his amended motion for new trial filed December 22, 1966, appellant alleged, in paragraph II:
“That since the Trial of the Defendant was concluded on the 28 day of October, 19 hundred and 66, there has been discovered new evidence which was found to exist through no lack of diligence on the part of the Defendant. Such evidence being that a sample of pubic hair taken from the Defendant together with the samples of pubic hair found on the bedspread upon which the alleged rape assertedly occurred were transmitted to the Texas Department of Public Safety Laboratory and the chemist who there made an examination of the same reported to the District Attorney of Gray County that he was unable to identify the pubic hair on the bedspread with that of the suspect, meaning the sample [110]*110of pubic hair taken from the Defendant. In this connection, the Court is urged, that such chemist will testify that ordinarily such identification can be made if it in fact exists and such circumstance clearly raises and supports the inference that a person other than the accused Vessels participated in this transaction made the basis of the prosecution herein and that such newly discovered evidence, if presented to a Jury, would likely result in a different result by the way of verdict on the issue of guilt or innocence or alternatively on the quantum of punishment to be assessed.”
Ground of error No. 1 set forth in appellant’s appellate brief filed in the trial court on July S, 1967, is:
“The trial court erred in refusing to grant appellant’s motion for new trial on the proof of failure of the State to disclose relevant evidence highly beneficial to the accused.”
The facts set out in the brief, in support of this ground of error, are that close to the time the dog hair specimens were submitted to the chemist, quantities of pubic hair were taken from the complaining witness and from appellant and were given to the same chemist for a comparison, the comparison desired being one contrasting the identified pubic hair from the victim and appellant with certain pubic hairs found on the top of the bedspread immediately after the crime occurred. The comparison was made and the chemist expressed the opinion that the pubic hairs donated by appellant and the victim were not even similar in appearance to the pubic hair found on the bedspread just after the rapes. The opinion was available to the prosecutor before trial, but was not made known to appellant’s court appointed trial lawyer before or during the trial. Based on the comparison, the chemist would have testified that in all reasonable probability the pubic hair found on the bedspread did not come from either of the known donors, appellant and the complaining witness.
Such evidence, the bill contends, goes beyond being beneficial to appellant but weighed in light of logic impels toward the conclusion that some third and unknown person committed the crime.
Citing Ashley v. State of Texas, 5 Cir., 319 F.2d 80, counsel argues in his brief that the state elected to use one scientific hair comparison to aid its case and at the same time failed to disclose the fact of and result of yet another scientific comparison tending to establish (if not in fact doing so) the innocence of appellant.
The ground of error must be appraised in the light of the issues before the court at the hearing which were raised in the motion for new trial and the facts of the case.
This court held, in the recent case of Hobbs v. State, 407 S.W.2d 791, that an exception to the court’s action in refusing to grant a new trial on the ground of newly discovered evidence not urged as a ground of error in the defendant’s appellate brief was not before this court for review.
It is also the holding of this court that in order to entitle the defendant to a new trial, newly discovered evidence must be such as would likely change the result, if produced at another trial. Bryan v. State, Tex.Cr.App., 406 S.W.2d 210, cert. denied, 386 U.S. 1023, 87 S.Ct. 1378, 18 L.Ed.2d 461; 1 Branch’s Ann.P.C. 2d Ed., Sec. 223.
The victim made immediate outcry and was taken to the hospital by a neighbor. She positively identified appellant at the trial as the man who gained entrance to the home she occupied with her husband and their eight months old baby on the pretext that he needed to come in and see if there were any leaks in the gas appliances. She testified that appellant threatened to kill her if she screamed; ravished her twice, stabbed her and robbed her of the seven dollars she had in her purse.
[111]*111The physician who attended the victim at the hospital testified that she had suffered stab wounds in the abdomen and chest and he described four which his examination revealed were superficial and one deeper stab wound in the upper abdomen which penetrated through the abdominal wall and slightly cut the liver and a blood vessel in the colon. He testified that he accepted her statement that she had been raped as well as stabbed and ran no tests on the secretions from her vagina to determine if there was any sperm there.
In addition to her positive identification of appellant at the trial, the victim had identified appellant in a police lineup and the state offered evidence that dog hair found on his clothing after his arrest was identical with hair of the victim’s dog.
It is interesting to note that in his remarks to the jury at the trial on the issue of guilt or innocence, appellant’s counsel argued that appellant was not being tried for robbery or for assault, but for rape, and that the only issue the jury had to decide was “was she penetrated by the male organ of Tommy R. Vessels beyond a reasonable doubt,” and * * * “I guarantee you he’s sorry, he’s no good and you will find this out as the case progresses, but I want you to take into consideration only one thing; Did he actually penetrate with his male organ the female organ of (the victim). If he did, why didn’t the state come in with the proper corroborative evidence ?”
The evidence which counsel complained was missing was blood on the victim’s brassiere ; an independent determination by the doctor which would have foreclosed doubt “that Vessels, attacker, robber, is also a rapist.”
In his argument counsel for appellant also pointed to the absence of any evidence as to fingerprints on the yard gate through which appellant probably entered and of testimony as to any blood on appellant’s Levi jacket or his shirt, or in the victim’s bedroom. '
After the jury had found appellant guilty of rape and had heard the evidence of .his prior criminal record, including several felony convictions, appellant’s counsel remarked to the jury in his argument: “I concur in your verdict.
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OPINION
BELCHER, Judge.
The conviction is for rape; the punishment, death.
The appellant presents five grounds of error in his brief urging reversal.
In his motion for new trial filed November 8, 1966, appellant alleged in paragraph 7:
“The defendant would show to the court that there has been new testimony material to the defendant’s defense which has been discovered since the time of the trial.”
In his amended motion for new trial filed December 22, 1966, appellant alleged, in paragraph II:
“That since the Trial of the Defendant was concluded on the 28 day of October, 19 hundred and 66, there has been discovered new evidence which was found to exist through no lack of diligence on the part of the Defendant. Such evidence being that a sample of pubic hair taken from the Defendant together with the samples of pubic hair found on the bedspread upon which the alleged rape assertedly occurred were transmitted to the Texas Department of Public Safety Laboratory and the chemist who there made an examination of the same reported to the District Attorney of Gray County that he was unable to identify the pubic hair on the bedspread with that of the suspect, meaning the sample [110]*110of pubic hair taken from the Defendant. In this connection, the Court is urged, that such chemist will testify that ordinarily such identification can be made if it in fact exists and such circumstance clearly raises and supports the inference that a person other than the accused Vessels participated in this transaction made the basis of the prosecution herein and that such newly discovered evidence, if presented to a Jury, would likely result in a different result by the way of verdict on the issue of guilt or innocence or alternatively on the quantum of punishment to be assessed.”
Ground of error No. 1 set forth in appellant’s appellate brief filed in the trial court on July S, 1967, is:
“The trial court erred in refusing to grant appellant’s motion for new trial on the proof of failure of the State to disclose relevant evidence highly beneficial to the accused.”
The facts set out in the brief, in support of this ground of error, are that close to the time the dog hair specimens were submitted to the chemist, quantities of pubic hair were taken from the complaining witness and from appellant and were given to the same chemist for a comparison, the comparison desired being one contrasting the identified pubic hair from the victim and appellant with certain pubic hairs found on the top of the bedspread immediately after the crime occurred. The comparison was made and the chemist expressed the opinion that the pubic hairs donated by appellant and the victim were not even similar in appearance to the pubic hair found on the bedspread just after the rapes. The opinion was available to the prosecutor before trial, but was not made known to appellant’s court appointed trial lawyer before or during the trial. Based on the comparison, the chemist would have testified that in all reasonable probability the pubic hair found on the bedspread did not come from either of the known donors, appellant and the complaining witness.
Such evidence, the bill contends, goes beyond being beneficial to appellant but weighed in light of logic impels toward the conclusion that some third and unknown person committed the crime.
Citing Ashley v. State of Texas, 5 Cir., 319 F.2d 80, counsel argues in his brief that the state elected to use one scientific hair comparison to aid its case and at the same time failed to disclose the fact of and result of yet another scientific comparison tending to establish (if not in fact doing so) the innocence of appellant.
The ground of error must be appraised in the light of the issues before the court at the hearing which were raised in the motion for new trial and the facts of the case.
This court held, in the recent case of Hobbs v. State, 407 S.W.2d 791, that an exception to the court’s action in refusing to grant a new trial on the ground of newly discovered evidence not urged as a ground of error in the defendant’s appellate brief was not before this court for review.
It is also the holding of this court that in order to entitle the defendant to a new trial, newly discovered evidence must be such as would likely change the result, if produced at another trial. Bryan v. State, Tex.Cr.App., 406 S.W.2d 210, cert. denied, 386 U.S. 1023, 87 S.Ct. 1378, 18 L.Ed.2d 461; 1 Branch’s Ann.P.C. 2d Ed., Sec. 223.
The victim made immediate outcry and was taken to the hospital by a neighbor. She positively identified appellant at the trial as the man who gained entrance to the home she occupied with her husband and their eight months old baby on the pretext that he needed to come in and see if there were any leaks in the gas appliances. She testified that appellant threatened to kill her if she screamed; ravished her twice, stabbed her and robbed her of the seven dollars she had in her purse.
[111]*111The physician who attended the victim at the hospital testified that she had suffered stab wounds in the abdomen and chest and he described four which his examination revealed were superficial and one deeper stab wound in the upper abdomen which penetrated through the abdominal wall and slightly cut the liver and a blood vessel in the colon. He testified that he accepted her statement that she had been raped as well as stabbed and ran no tests on the secretions from her vagina to determine if there was any sperm there.
In addition to her positive identification of appellant at the trial, the victim had identified appellant in a police lineup and the state offered evidence that dog hair found on his clothing after his arrest was identical with hair of the victim’s dog.
It is interesting to note that in his remarks to the jury at the trial on the issue of guilt or innocence, appellant’s counsel argued that appellant was not being tried for robbery or for assault, but for rape, and that the only issue the jury had to decide was “was she penetrated by the male organ of Tommy R. Vessels beyond a reasonable doubt,” and * * * “I guarantee you he’s sorry, he’s no good and you will find this out as the case progresses, but I want you to take into consideration only one thing; Did he actually penetrate with his male organ the female organ of (the victim). If he did, why didn’t the state come in with the proper corroborative evidence ?”
The evidence which counsel complained was missing was blood on the victim’s brassiere ; an independent determination by the doctor which would have foreclosed doubt “that Vessels, attacker, robber, is also a rapist.”
In his argument counsel for appellant also pointed to the absence of any evidence as to fingerprints on the yard gate through which appellant probably entered and of testimony as to any blood on appellant’s Levi jacket or his shirt, or in the victim’s bedroom. '
After the jury had found appellant guilty of rape and had heard the evidence of .his prior criminal record, including several felony convictions, appellant’s counsel remarked to the jury in his argument: “I concur in your verdict. I think you have done the right thing.”
While the state was making out its case in chief and before the chemist testified, Sheriff Jordan testified on cross-examination that the appellant willingly gave him specimens of pubic hair.
The chemist testified that the comparison test was made not later than May 20, 1966.
Soon after appellant’s arrest, he willingly furnished the state with specimens of pubic hair from his body. Thus, he was forewarned concerning this phase of the state’s investigation.
We do not agree that the report of the chemist was inconsistent with appellant’s guilt or that the district attorney conducted his examination of the chemist so as to leave the impression in the minds of the jurors that in fact no human hair report or testimony existed.
A fair inference could be drawn by counsel from the state’s failure to prove that hair had been found in the home of the victim which was similar to the hair appellant had furnished — that no such hair had been found.
The chemist was not furnished and did not have a sample of the hair of the husband of the victim with which to compare the hair found on the bedspread.
The trial court did not err in overruling the motion for new trial on the ground of newly discovered evidence.
We do not agree that the record supports appellant’s ground of error predicated upon newly discovered evidence that any failure or refusal of the state or its officers to disclose the results of the comparison of pubic hairs denied appellant due process of law. Ground of error No. 1 is overruled.
[112]*112In appellant’s second ground of error he contends that the trial court erred in refusing compulsory process to the appellant in connection with his hearing on motion for new trial.
Even though, the trial court, on December 22, 1966, refused to accord the appellant his rights in connection with a hearing on his motion for a new trial, he notified the appellant on December 27, 1966, that he would grant subpoenas and hear further evidence on the motion for new trial on December 29, 1966.
On December 29, 1966, the judge announced in open court that he did not want to be responsible for not allowing the appellant’s witnesses to be subpoenaed, and that appellant could have the witnesses he wanted. The judge further said:
“If we proceed with this hearing, and we don’t get through today, we will continue on until we get the witnesses you want in here.”
At the time the evidence closed, the following occurred:
“Mr. Burnett: If your Honor please, we have no further evidence to offer at this time.
“The Court: Well, yesterday, I believe I was informed, or I think you and I had a discussion here about getting Dr. Pennal?
“Mr. Burnett: Yes, sir.
“The Court: Did you get him here?
“Mr. Burnett: I have talked with him on the phone. He’s quite busy, and I think I would be better advised to -not insist on his appearance, so I do not insist on it.
“Mr. Waters: He is under subpoena now?
“Mr. Burnett: He has been served by process this morning in Amarillo.
“The Court: And then, you wanted his mother ?
“Mr. Burnett: He would come, but was quite reluctant.
“The Court: Did you get in contact with his mother?
“Mr. Burnett: Mrs. Freeman advised me that she was served this morning, I believe — is that right ? She was served with process this morning.
“The Court: Do you want to wait until she comes?
“Mr. Burnett: It’s just entirely up to the Court. I make the offer of proof that I made yesterday. I don’t know when she would get here, I’ll tell the Court in all fairness.
“The Court: Well, as stated to you, we will give you the balance of my time. That’s until tomorrow night, to get these witnesses here that you want.
“Mr. Burnett: I have no way of knowing whether she can get here or not.
“The Court: Do you have anything else to say, Mr. Waters ?
“Mr. Waters: No, your Honor.”
The second ground presented as error is overruled.
It is strenuously insisted in the third ground of error that the entire action of the trial court with reference to the hearing on motion for new trial operated to deprive the appellant of the fair forum to which he was lawfully entitled.
At the hearing on December 22, 1966, the trial judge did not afford the appellant the hearing contemplated and provided by the laws of this state.
The trial judge soon realized his mistakes after the hearings on December 22, and set about to correct them. This was undertaken by the trial judge and is fully shown by our consideration of appellant’s ground of error number two.
It is concluded that the trial judge on December 27 and 29, afforded'the appel[113]*113lant every opportunity to present and develop any matter at the hearing beginning on December 29, which he desired. The third ground of error is overruled.
Appellant contends, in his ground of error No. 4, that t.he trial court erred in failing to make counsel available to him at the post-trial stage of the proceedings.
The record reveals that counsel, during the trial, was released immediately after the return of the verdict. Within a few days counsel Comer was appointed, and he ordered the statement of facts and oral argument from the court reporter, and then at his request .he was released. About this time, appellant’s mother and stepfather told the judge they had employed counsel or were seeking to employ counsel and he gave them until December 15, to employ counsel of their choice. During this time, according to information given the judge, a motion for new trial was prepared by a Fort Worth attorney. A three-page motion for new trial signed by the appellant in person, was filed November 8, 1966, and it appears in the record. On December 14, the judge was contacted and informed by present counsel that he was representing the appellant and he was granted additional time to file amended motion for new trial and a hearing was set for December 22. Since December 15, 1966, present counsel has continued to represent the appellant. This contention is overruled.
The appellant, in his fifth ground of error, insists that the trial court erred in using the alternate procedure in determining his guilt and the punishment to be assessed.
At the close of the evidence in chief for both the state and the appellant, the following occurred:
“Mr. Waters: (In the Absence of the Jury) Judge, at this stage and before the State closes or puts on any evidence in rebuttal, I would like to inquire of Defense Counsel as to whether he and the Defendant elect to .have a separate hearing on punishment and the punishment assessed by the Jury or not.
(Discussion off the record).
(The above and foregoing statement and inquiry of Mr. Waters was read to Mr. Bowers and the Defendant again).
‘Mr. Bowers: From the standpoint of counsel, in answer to that question, I will say that I will concur with my client in his wishes, and we do wish a separate hearing to the Jury on punishment, and I concur with his wishes, which I ask him now to state for the record. Restate it, Tom, in your words.
‘The Defendant: I believe I would prefer the Jury.
‘Mr. Waters: Is it a matter of record that the Defendant is electing that the punishment be assessed by the Jury rather than by the Court, and that the matter of punishment be presented to the Jury by separate hearing?
‘The Defendant: Yes, sir.
‘Mr. Bowers: Defense counsel concurs.
‘Mr. Waters: And that a separate hearing on punishment be held after and in the event the Jury should find a verdict of guilty and a Charge be submitted to them on that issue alone?
‘The Defendant: I don’t know what he meant.
(Discussion off the record between the Defendant and Mr. Bowers).
‘Mr. Bowers: We have got the main predicate laid. I have concurred with him in his desire that the Jury set the penalty. I also concur in the last part of your question.
‘Mr. Waters: Your answer is ‘Yes, you do so elect’?
‘Mr. Bowers: My answer is yes, we do so elect.
[114]*114(TEN MINUTE RECESS)
“Mr. Waters: (Still in the Absence of the Jury) Now, in addition to that, is it your further understanding and the understanding of the Defendant and the election of the Defendant that upon submitting the matter of punishment for determination by the Jury in a separate hearing, that both sides will be permitted to offer evidence as to the prior criminal record of the Defendant, his general reputation and his character ?
(Discussion off the record)
“Mr. Bowers: To that, I answer yes.
“Mr. Waters: And the Defendant does so elect?
“The Defendant: Yes, sir.
“Mr. Waters: The State concurs in the election of the Defendant, such election having been made by the Defendant to have a separate hearing on punishment by the Jury; that the question of guilt or innocence be submitted in a separate Charge first to the Jury for its determination, and in the event of a verdict of guilty by the Jury, that a separate hearing be had before the Jury, at which time both parties may offer evidence as to the prior criminal record of the Defendant as to his general character and reputation, and that the question of punishment be submitted to the Jury in a separate Charge for their determination thereafter.”
From the record, it concluded that the appellant waived his right to have the guilt and punishment determined by the jury in one hearing by electing to have the jury assess the punishment. Miller v. State, Tex.Cr.App., 412 S.W.2d 650.
The fifth ground urged as error is overruled.
The judgment is affirmed.