Ex parte Lew A. KANAZIZ.
No. 41018.
Court of Criminal Appeals of Texas.
Jan. 17, 1968.
423 S.W.2d 319
Henry Wade, Dist. Atty., John Stauffer, Al Valvoord and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, Stаte’s Atty., Austin, for the State.
OPINION ON APPELLANT’S MOTION FOR REHEARING
MORRISON, Judge.
It has now been shown that appellant’s brief was filed in the trial court, but was inadvertently omitted from the record sent to this Court. Our prior оpinion is withdrawn, and the following substituted in lieu thereof.
The offense is robbery with firearms; the punishment, 20 years.
Appellant’s sole ground of error is that “in charging the jury as to the law of the case, the Honorable Judge (committed fundamentаl error) by charging that should the jury find that the defendant took property of the complaining witness with intent to appropriate the same to the use and benefit of the said complaining witness, they should find the defendant guilty.”
No objеctions to the charge were made, and no motion in arrest of judgment was submitted.
It has been the uniform holding of this Court under
Appellant’s motion for rehearing is overruled, and the judgment is affirmed.
Ex parte Lew A. KANAZIZ.
No. 41018.
Court of Criminal Appeals of Texas.
Jan. 17, 1968.
423 S.W.2d 319
Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Crawford C. Martin, Atty. Gen., Monroe Clayton, Asst. Atty. Gen., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The petition for writ of habeas corpus presented to this court and ordered filed attacks the validity of thе conviction for robbery affirmed by this court in Kanaziz v. State, 382 S.W.2d 485.
The state and the Respondent, Dr. George Beto, Director of the Texas Department of Correсtions, move that the Petitioner’s application be dismissed, the grounds being that such petition as well as the petition previously presented to thе Judge of the 174th District Court of Harris County each fails to comply with
Certified copies of the petition presented to the District Cоurt and the Court’s order thereon sustain the state’s contention. Such certified copies reflect that the district judge denied permission to file the аpplication on September 22, 1967.
The petition before this court wаs received October 20, 1967, and thereafter on November 1, 1967, an affidavit was received from applicant with the request that it be considered with his рetition.
The affidavit was sworn to on October 20, 1967, hence it is apparеnt that it was not before the District Judge in connection with the petition he denied leave to file on September 22, 1967.
We deem it appropriate in this connection to say that we see no reason why, espeсially in cases where a prior conviction in another jurisdiction used fоr enhancement is attacked, the judge conducting the post-conviсtion habeas corpus hearing may not consider affidavits such as the Federal Courts are authorized to do under
The petition for writ of habeas corpus filed in this court is dismissed without prejudice to applicant’s right to obtain a hearing in the 174th District Court by petition meeting the requirements of
Ex parte Lew A. KANAZIZ.
No. 41018.
Court of Criminal Appeals of Texas.
Jan. 17, 1968.
423 S.W.2d 319
CONCURRING OPINION
MORRISON, Judge.
While I agree with the disposition of this application, I wish to call to petitioner’s attention the fact that this Court has before it an affidavit executed by the Chief Appellate Counsel for Oakland County, Michigan, in which he swears that а thorough search of the records of the Circuit Court of said county reveals that petitioner was not represented by an attorney at the timе he was convicted of the offense alleged for enhancement in paragraph two of the indictment in Kanaziz v. State, supra.
Such affidavit will be made availablе to petitioner when he makes his new application to the trial court.
I concur.