Boggus v. State , 130 Tex. Crim. 656 ( 1936 )

The appellant was convicted of the offense of arson, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

At a former day of this term this court dismissed the appeal because of an insufficient appeal bond. Since that time the appellant has filed an appeal bond, which has been duly approved by the sheriff of Caldwell County and the presiding judge, accompanied by a motion to reinstate the appeal. Therefore, the appeal is reinstated and the case will be disposed of on its merits.

Appellant was indicted on the 7th day of November, 1934, for the offense of arson. His case was called for trial April 8, 1935. Appellant tried to obtain the services of an attorney, but up to that time he had not succeeded because he was unable to raise any money, which he made known to the court on the day his case was set for trial. The trial court appointed Emmett Shelton, an attorney at law, to represent the appellant. Upon the advice of his counsel appellant with the consent of the district attorney and the approval of the presiding judge waived the jury and entered the plea of guilty. The court duly admonished him of the consequences of his plea and inquired of him if he had been influenced to enter such plea by any consideration of fear or by any persuasion or delusive hope of pardon prompting him to confess his guilt, which he answered in the negative. The court satisfied himself as to appellant's sanity and thereupon received his plea of guilty and assessed his punishment at confinement in the penitentiary for a term of two years, he immediately accepted sentence. Thereafter he filed a motion for a new trial in which he asserted that he was not guilty; that at the time the house in the town of Luling in Caldwell County was burned, he was visiting in Gonzales County. This motion was controverted by the State. The court heard evidence on the issues thus made and at the conclusion thereof overruled the motion. The appellant on cross-examination testified: "After the indictment was read to me, the judge asked me 'Is anybody making you plead guilty?', and I said 'No.' He asked me 'Is anybody forcing you to plead guilty?' and I said 'No.' He asked me 'if the governor had promised to pardon me if I would plead guilty,' and I said 'No.' He asked me if I was pleading guilty because I was guilty and I answered 'Yes.' Then he had me to hold up my hand and be sworn to testify the truth, the whole truth and nothing but the truth. I was asked if I was guilty of the offense charged in the indictment and I answered 'Yes.' " It is our opinion that the court in overruling the motion for a new trial did not abuse his discretion. The trial court was not bound to accept as true the testimony offered by the appellant in support of his motion for a new trial. See Koch v. State, 110 Tex.Crim. Rep.; Hawkins v. State, 270 S.W. 1025.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.