
    KOCH v. STATE.
    (No. 11885.)
    Court of Criminal Appeals of Texas.
    Oct. 31, 1928.
    Polk Sheltofi. and Warren W. Moore, both of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the Státe.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant and one Robert Wells were jointly indicted and jointly tried. Each entered a plea of guilty and made an application for a suspended sentence. The sentence of Wells was suspended, but the jury declined to suspend that of the appellant. The record is without a statement of facts with reference to the incidents of the offense.

From a bill of exceptions, it appears that, touching the application for a suspended sentence, the mother' of the appellant testified that he was 20 years of age; that he had been living in Travis county about 15 years, with absences off and on of from 6 months to a year at the time; that he had been sent to the reformatory for a period of 2 years; and that at the time of the trial was on parole.

Appellant testified in his own behalf on the application for a new trial, and said that he was not guilty of the theft; that the property was stolen by Wells, without the presence or co-operation of the appellant; that, after the property was stolen, he and Wells were in possession of it; and that they together endeavored to sell it. He said that he was induced to plead guilty and ask for a suspended sentence because his attorney had advised him to do so, stating that the circumstances were such that his chance would be better if the plea of guilty was entered. On cross-examination by the court on the hearing of the motion for new trial, the appellant testified that, at the time the plea of guilty was entered, the court asked him if he was pleading guilty because he was guilty and because be wanted to make such a plea, to wbicb tbe appellant replied in the affirmative. He was also asked if be was pleading guilty because of tbe delusive bope of pardon or undue influence, to wbicb be gave a negative reply. Tbe opinion is expressed that, in overruling tbe motion for new trial, there was no abuse of discretion of tbe trial court. Tbe appellant’s testimony that be acted under tbe persuasion of bis counsel was unsupported, and is in conflict with bis declarations to tbe court at tbe time tbe plea of guilty was received. We tbink tbe trial court was not bound to accept as true tbe testimony of tbe appellant upon tbe motion for new trial. See Hawkins v. State, 99 Tex. Cr. R. 569, 270 S. W. 1025.

Tbe judgment is affirmed.  