Ex parte Loper, No. 24373

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No. 24373 | Tex. Crim. App. | Mar 9, 1949

Lead Opinion

GRAVES, Judge.

*241Relator was granted a writ of habeas corpus in the district court of Houston County, alleging that he was illegally held by the authorities of the state prison system upon a conviction in the district court of Harris County wherein he was convicted of rape and assessed a penalty of fifty years in the penitentiary. He claimed herein that this conviction was void for many reasons, all of which are matters that could have and should have been urged upon the trial of the Harris County case or upon an appeal therefrom. He failed to appeal such cause.

It appears that the Harris County court had jurisdiction over the matter and power to hear and determine the same, and also the power to render the judgment which it did render. The judgment therein appears to be a valid one and is not subject to this attempted collateral attack. All matters offered herein should have been raised in the trial and appeal from the Harris County case.

Upon a hearing hereof the judge of the Houston County district court remanded relator to the custody of the prison authorities from which he appealed.

We express the opinion that this is an attempt to collaterally attack the Harris County judgment, and, as heretofore stated, all matters here offered should have been presented in the trial of the Harris County case.

The writ of habeas corpus cannot be resorted to in lieu of an appeal. See Ex parte Clinnard, 145 Tex. Crim. 460" court="Tex. Crim. App." date_filed="1943-02-03" href="https://app.midpage.ai/document/ex-parte-clinnard-4900787?utm_source=webapp" opinion_id="4900787">145 Tex. Cr. R. 460, 169 S. W. (2d) 181; Ex parte Minor, 146 Tex. Crim. 159" court="Tex. Crim. App." date_filed="1943-06-16" href="https://app.midpage.ai/document/ex-parte-minor-4900901?utm_source=webapp" opinion_id="4900901">146 Tex. Cr. R. 159, 172 S. W. (2d) 347; Ex parte Bonds, 148 Tex. Crim. 198" court="Tex. Crim. App." date_filed="1945-01-10" href="https://app.midpage.ai/document/ex-parte-wm-h-bonds-3941731?utm_source=webapp" opinion_id="3941731">148 Tex. Cr. R. 198, 185 S. W. (2d) 984; Ex parte Lagrone, 148 Tex. Crim. 390" court="Tex. Crim. App." date_filed="1945-04-25" href="https://app.midpage.ai/document/ex-parte-herman-lagrone-3961522?utm_source=webapp" opinion_id="3961522">148 Tex. Cr. R. 390, 187 S. W. (2d) 574; Ex parte Ricketts, 148 Tex. Cr. R. 569, 189 S. W. (2d) 872.

The judgment refusing such discharge is therefore affirmed.

Rehearing

ON MOTION FOR REHEARING.

KRUEGER, Judge.

Appellant has filed a motion for a rehearing in which he reasserts the same matters which were urged on the original submission of this case. His contentions were fully discussed by us in the original opinion, and a proper disposition was made thereof.

Therefore, the motion for a rehearing is overruled.

*242Opinion approved by the Court.