Martin v. State

OPINION

ONION, Judge.

This is an appeal from a conviction for burglary with punishment assessed at five years by the court following a verdict of guilty.

In his first ground of error appellant complains the trial court erred in assessing punishment rather than permitting the jury to do so.

Appellant relies upon the provisions of Article 37.07, Vernon’s Ann.C.C.P. and his sworn motion in writing for probation. Such motion, filed on the day trial began, January 28, 1969, reads in part as follows:

“The Defendant herein represents that he has never been convicted of a Felony in this or any other…