
    PAYNE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    Criminal Law (§ 1158*) — Appeal—Finding of Trial Court.
    A finding by the trial judge on conflicting evidence as to alleged representations made by accused’s former attorney inducing a plea of guilty was conclusive on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2669; Doc. Dig. § 1158.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Jesse Payne was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted for burglary. He pleaded -guilty. The judge, in the charge to the jury, recites to them that the appellant in open court has complied with all of the requisites of a plea of guilty in a felony case, as prescribed in articles 581, 565, and 566, C. C. P. Thereupon the jury found him guilty as charged, and assessed his punishment at the lowest penalty, two years in the penitentiary. The judgment entered in the case also fully complies with the requisites as prescribed by the above articles, and the judgment to be rendered on such plea.

It seems that later another attorney, other than the one who represented him at the time this plea and judgment were entered, was employed for him, and, although the appellant had been sentenced, the court permitted a motion for new trial to be filed, and heard the same, and heard evidence thereon. In this matter it is shown that the appellant and his mother testified that appellant’s attorney had told them that, if he would plead guilty, he would not he sentenced un-tier the new law, but his sentence suspended pending good behavior. His attorney, in the hearing before the court on this motion, testified positively the reverse of this, and that all this occurred before he entered his plea of guilty. Clearly this raised a question of fact, which is shown to have been considered by the lower court and decided against appellant on this point. In addition, as stated above, both the charge of the court and the judgment specifically recited and stated everything that was requisite, as prescribed by the said articles of procedure above cited. We are of the opinion that the court did not err in refusing a new trial.

The judgment will therefore be affirmed.  