Hardy v. State (93 S.W.2d 425, 1936)

LATTIMORE, Judge.

Conviction for aiding prisoner to escape; punishment, three years in the penitentiary.

A plea of guilty was duly and legally entered in this case, upon which a judgment was based so decreeing, of date September 11, 1935, in which the punishment of appellant was fixed at three years in the penitentiary. No motion for new trial w¿s filed, but, when sentence was imposed on September 20, 1935, the prison term of this appellant was made cumulative of one imposed in another case against appellant triedl at the same term. Thereupon appellant made a motion.in arrest of,judgment, setting up that he had been induced to enter his plea of guilty by his attorney, who had! advised him that, if he would so plead guilty,, the district attorney would recommend to the court that appellant’s sentence herein run concurrently with that imposed in the other casé referred to. If this be treated as a motion in arrest of judgment, which our statute seems to contemplate should only attack matters of the indictment, the trial! judge might have -declined to consider the-motion because filed too late. See Lewis v. State, 50 Tex.Cr.R. 331, 97 S.W. 481; Reno v. State, 56 Tex.Cr.R. 242, 120 S.W. 430;. Burnett v. State, 88 Tex.Cr.R. 598, 228 S.W. 239. However, we observe that the trial judge gave appellant a hearing on the motion, and upon the facts adduced overruled same. We have examined the testimony heard by the court upon this motion, and think his action well supported. We learn from same that the district attorney did in fact recommend to the trial judge that the sentences,. above referred to, be made to run concurrently, but the trial judge declined to follow such recommendation, as he "had a perfect right to do. We are not impressed with the fact that appellant’s claim has any merit.

The judgment is affirmed.

MORROW, P. J., absent.