Hustead v. State

251 S.W. 1074, 95 Tex. Crim. 49, 1923 Tex. Crim. App. LEXIS 507

Opinions

HAWKINS, Judge.

— Conviction is for conspiracy to commit the crime of theft, with punishment at two years confinement in the penitentiary.

Appellant went to trial on a plea of “not guilty.” • After the State’s evidence was introduced the plea of “not guilty” was withdrawn and a plea of guilty entered. No bills of exception were reserved to any part of the proceedings, and no statement of facts adduced upon the trial accompanies the record. Appellant sought a new trial on the ground that his attorney coerced him into entering the plea of guilty. This necessarily raised an issue of fact for the consideration of the trial court. No bill of exception having been reserved to his action in overruling the motion for new trial, we are not in a position to review the question. What purports to be the evidence taken upon a hearing of the motion accompanies the record, but cannot be considered. The trial term adjourned July 4th, 1921. The statement of facts in question was not filed in the court below until September 2, 1921. To be considered such a statement of facts must be filed within the term. Sec. 598, Branch’s Ann. Pen. Code, Jurado v. State, 91 Texas Crim. Rep., 490; Nothaf v. State, 91 Texas Crim. Rep., 619, and cases cited in both opinions. We also observe that many affidavits attached to the motion were taken before appellant’s attorney. This has been repeatedly held to be objectionable. The judgment will be affirmed.

Affirmed.