
    PHELAN v. STATE.
    No. 20829.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of 4 years.

Appellant was- charged by indictment with having unlawfully by force entered a house known as the Parks Absorption Pump Room, then and there occupied and controlled by A. A. Harden, with the fraudulent intent to take from said house certain personal property therein located, etc.

When his case was called for trial, appellant waived- a jury in the manner provided by law and entered a plea of guilty. Notwithstanding his plea of guilty, the state offered proof to substantiate the charge in the indictment. After his conviction, appellant filed a motion for a new trial in which he asserted that he was induced to plead guilty by the district attorney, who advised him that if he did plead guilty, he would recommend that his punishment be assessed at confinement in the state penitentiary for a term of two years. That he believed said promise and relied thereon when he entered said plea. This motion was contested by the state. A categorical' denial of the allegations were made by the district attorney. Appellant offered no proof in support of his allegations. Under the circumstances as disclosed by the record, we are unable to say that the trial court-abused his discretion in declining to grant a new trial.

No error of a reversible nature appearing, the judgment is affirmed.

PER CURIAM.

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.  