FRANK SLAVIN, PLAINTIFF-APPELLANT,

v.

TIM CURRY, ETC., ET AL., DEFENDANTS-APPELLEES

PER CURIAM:

At the direction of the court, counsel for defendant, Judge Charles Lindsey, has supplied the court with documentary evidence which establishes the following facts. Following the action of the Texas Court of Criminal Appeals which vacated Frank Sla-vin’s original conviction, he was on May 12, 1977 reindicted for the same offense with two prior felonies alleged for enhancement. On October 4, 1977 Slavin, represented by new counsel, waived a trial by jury and entered a plea of guilty before Judge Lindsey who on that same date sentenced Slavin to a term of imprisonment of not less than two nor more than four years in the Texas Department of Corrections.

Based upon these newly demonstrated facts the court withdraws as moot the paragraphs of its opinion which appear immediately following headnotes and , 574 F. 2d at 1264. Except as modified herein the remainder of the petition for rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED.