Escobar v. State

282 S.W.2d 873 (1955)

Raymond ESCOBAR, Appellant, v. The STATE of Texas, Appellee.

No. 27697.

Court of Criminal Appeals of Texas.

October 19, 1955.

*874 No appearance for appellant.

John F. May, Dist. Atty., Karnes City, Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Upon his plea of guilty, a jury being waived, appellant was convicted of assault with intent to murder with malice and his punishment was assessed at two years in the penitentiary.

A motion for new trial was filed and urged upon the theory that appellant had been lulled into believing that he did not need to employ an attorney.

There is no statement of facts on the trial proper.

The statement of facts on the motion for new trial refutes the claim that appellant was not guilty of a criminal offense when he fired into a car in which several persons were riding, and does not support the plea that he did not receive a fair and impartial trial.

The burden of appellant's complaint was and is that he was not granted probation, which he hoped for.

The granting or refusal of the motion for new trial was, under the facts, within the discretion of the trial court, as was the granting or withholding of probation. No abuse of discretion is made to appear.

The following authorities support our conclusion: Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86; Lewis v. State, 149 Tex.Cr.R. 224, 192 S.W.2d 889; Wolfe v. State, 153 Tex.Cr.R. 171, 218 S.W.2d 204.

The judgment is affirmed.