Ex parte Loper

219 S.W.2d 81, 153 Tex. Crim. 240, 1949 Tex. Crim. App. LEXIS 1141

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1949
• Docket: No. 24373
• Status: Published

Opinions

GRAVES, Judge.

Relator 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. Cr. R. 460, 169 S. W. (2d) 181; Ex parte Minor, 146 Tex. Cr. R. 159, 172 S. W. (2d) 347; Ex parte Bonds, 148 Tex. Cr. R. 198, 185 S. W. (2d) 984; Ex parte Lagrone, 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.