Opinion
No. 41879.
February 19, 1969.
Appeal from the 175th Judicial District Court, Bexar County, Anees A. Semaan, J.
Evans Marshall, by C. David Evans, San Antonio, for appellant.
James E. Barlow, Dist. Atty., Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the state.
OPINION
The offense is robbery by assault; the punishment, five years.
The indictment was for robbery by assault with firearms. The court dismissed the firearms portion of the indictment on the motion of the State. A jury was waived and a plea of guilty was entered. Sufficient evidence was offered for the conviction.
The sole complaint is that the trial judge did not grant probation. Appellant contends that he met all the requirements under Art. 42.12, Vernon's Ann.C.C.P., and it was an abuse of discretion to deny probation. In a trial before the court, where a jury has been waived, this is a matter that rests solely within the discretion of the trial judge. Hall v. State, Tex.Cr.App., 418 S.W.2d 810; McClane v. State, 170 Tex.Crim. 603, 343 S.W.2d 447; Roy v. State, 167 Tex.Crim. R., 319 S.W.2d 705; Escobar v. State, 162 Tex.Crim. R., 282 S.W.2d 873; Ex parte Pittman, 157 Tex.Crim. R., 248 S.W.2d 159.
The judgment is affirmed.